Unsafe Waters-Duh…Nuh, Duh…Nuh, Duh..NuhDuhNuhDuhNuh!

October 23, 2014 by

Just when you thought it was safe to go back into the copyright waters, they suddenly get both murkier more turbulent than ever before. I speak of the recent appeal handed down last week, 17 October, with respect to the Georgia State University reserves case, or GSU Case. That appeal is here, all 129 pages of it.

THE ORIGINAL CASE

To refresh your memory, GSU provided what were essentially digital course packets for students to use via the library’s e-reserves. In 2008, three publishers, Sage, Cambridge, and Oxford, filed suit charging over 100 violations of fair use. In 2009, GSU revised, updated, and modified its copyright policy, requiring faculty to address the four copyright factors and so establish a good faith test of fair use compliance (the four are: why you’re using it; nature of the copyrighted work; amount of the work used and that part’s value to the whole; and the market impact of your use on the material). The infringement violations were reduced to 99 with some that eventually were dismissed, removed or thrown out, leaving about 75. The case dragged on for more than a year and in 2012, about a year after the closing arguments were made, Judge Orinda Evans handed down its 350-page decision, found here.

The short version of the story is that the case proved a huge win for GSU, libraries, fair use and the information-wants-to-be-free crowd. For publishers, it was an avalanche of a loss. All but five of the 75 were found in favor of GSU. The remaining five were essentially legal quibbles, not without merit, but hardly enough to furrow the brow.

The appeals court reexamined the case last week, or rather reached a decision last week, one that took more than a year. Some say this is a win for publishers. Some say it is and it isn’t. Frankly it depends on whom you ask. The Court writes early, “[T]he District Court found that Defendants were the prevailing party and awarded them costs and attorneys’ fees. Because we find that the District Court’s fair use analysis was in part erroneous, we reverse the District Court’s judgment; vacate the injunction, declaratory relief, and award of costs and fees; and remand for further proceedings consistent with this opinion.”

That does not sound like unmitigated good news for GSU. What it does appear to be (but see Nancy Sims’ take, Copyright Librarian at the University of Minnesota) is not an avalanche of a loss for GSU, but certainly a bit of help to publishers. Publishers by no means go everything they wanted, but neither did GSU. It lost out on the roughly $3.5 million for legal fees awarded in the earlier decision. Much remains to be seen in this case, of course, but for the time being, “fair use” remains strong but a little more difficult to read.

THE CURRENT APPEAL STATUS

The first sticking point is the four factors constituting fair use in Copyright Act of 1976. The Court wrote, “In order to make this determination, the court must carefully evaluate the facts of the case at hand in light of four considerations … codified in the Copyright Act of 1976: (1) the purpose of the allegedly infringing use, (2) the nature of the original work, (3) the size and significance of the portion of the original work that was copied, and (4) the effect of the allegedly infringing use on the potential market for or value of the original…. Here, we are called upon to determine whether the unpaid copying of scholarly works by a university for use by students—facilitated by the development of systems for digital delivery over the Internet—should be excused under the doctrine of fair use.”

GSU’s approach to fair use was to look at them, but not to take them as a whole, examining them “mechanistically,” or as the Court put it, “[T]he District Court did err by giving each of the four fair use factors equal weight, and by treating the four factors mechanistically.” And again, “Plaintiffs also argue that the District Court erred in giving each of the four factors equal weight, essentially taking a mechanical “add up the factors” approach, finding fair use if three factors weighed in favor of fair use and one against and vice versa, and only performing further analysis in case of a “tie.” We agree that the District Court’s arithmetic approach was improper….”

Next, the Court underscored the availability of copyrighted materials and the licensing that can be paid for them. When these materials were in printed form, GSU purchased permission from Copyright Clearinghouse Center (CCC). Wrote the court, “There exists a well-established system for the licensing of excerpts of copyrighted works. Copyright Clearance Center (“CCC”) is a not-for-profit corporation with headquarters in Danvers, Massachusetts. CCC licenses excerpts from copyrighted works for a fee, acting on behalf of publishers who choose to make their works available through CCC. These licenses are called “permissions.” All three Plaintiffs offer excerpt-specific permissions to photocopy or digitally reproduce portions of their works, which may be obtained directly from Plaintiffs or through CCC. Permissions are not, however, available for licensed copying of excerpts from all of Plaintiffs’ works.”

In other words, if you want permission, you can get it; you simply have to pay for it if it is available, and in some cases it is not. In fact, dealing with CCC is no easy matter. The Court added, “How much unpaid use should be allowed is the bailiwick of the fair use doctrine. To further the purpose of copyright, we must provide for some fair use taking of copyrighted material. This may be viewed as a transaction cost, incidental to the business of authorship. But if we set this transaction cost too high by allowing too much taking, we run the risk of eliminating the economic incentive for the creation of original works that is at the core of copyright and—by driving creators out of the market—killing the proverbial goose that laid the golden egg.” Or, there must be a balance between educational value on the one hand, and incentive to create on the other. Neither, in the court’s opinion, has an absolute right.

Although not a big deal, the Court also found that what GSU did was not transformative: “Defendants’ use of excerpts of Plaintiffs’ works is not transformative. The excerpts of Plaintiffs’ works posted on GSU’s electronic reserve system are verbatim copies of portions of the original books which have merely been converted into a digital format. Although a professor may arrange these excerpts into a particular order or combination for use in a college course, this does not imbue the excerpts themselves with any more than a de minimis amount of new meaning.” In order to remain in fair use, a work cannot be copied verbatim but must be used either sparingly (see below), or recast to create a new work. Thus, Weird Al Yankovic can get away with his music and make a sizable profit because his songs transform the original work. Parody has always been protected, so long as it is different enough from the original. The works in question had not been changed at all, just copied verbatim.

With respect to how much copying had been done, GSU often resorted to 10% of the original rule-of-thumb, or the so-called “bright line.” But the Appeals Court questioned this as well, arguing that it is not a set amount, but whether what has been copied is substantially the point of the work. Although it is in public domain, it could be argued that Portia’s “Mercy Speech,” which does not occur until the Fourth Act of The Merchant of Venice, is the heart of that play, though it comprises less than one half of one percent of the whole. A more recent example would be Joyce’s ending of Ulysses and Molly Bloom’s famous “yes” monologue. The point the court made was that simply looking at a piece arithmetically is not going to protect you under fair use if what you choose to use is the heart of that work. It’s a judgment call, but it’s a judgment call that must be made on each individual piece presented, not an arithmetical amount applied to everything possible.

The Court concluded, “[T]he District Court erred by separating two considerations from its analysis of the first and fourth fair use factors…. Because the District Court’s grant of injunctive relief to Plaintiffs was predicated on its finding of infringement, which was in turn based on the District Court’s legally flawed methodology in balancing the four fair use factors and erroneous application of factors two and three, we find that the District Court abused its discretion in granting the injunction and the related declaratory relief. Similarly, because the District Court’s designation of Defendants as the prevailing party and consequent award of fees and costs were predicated on its erroneous fair use analysis, we find that the District Court erred in designating Defendants as the prevailing party and awarding fees and costs to Defendant.”

JUDGE VINSON’S MORE CONCURRING BUT SOMEWHAT STRIDENT REMARKS

District Judge Vinson also weighed in concurring, but was even harsher on GSU, writing “after applying traditional common law principles to the use at issue here, this is a rather simple case. Checking the four statutory factors to ensure that they have been considered merely affirms the conclusion that what GSU is doing is not fair use.” He goes on to write, “[T]his case arises out of a university-wide practice to substitute “paper course packs” (the functional equivalent of textbooks) that contained licensed copyrighted works with “digital course packs” that contained unlicensed copyrighted works. This was done for the vast majority of courses offered at GSU and, as will be seen, it was done primarily to save money.” Ouch.

He closes with a strident conclusion and a bit of moralizing: “I would go further than does the majority and conclude that both the District Court’s methodology and its analysis were flawed. The Defendants’ use fails under any objective common law “big picture” adjudication of fair use and also fails on a work-by-work analysis under three of the four factors (while the remaining factor is either neutral or weighs against Defendants). It has been said that fair use is best and most precisely explained by the following paraphrase of the Golden Rule: “‘Take not from others to such an extent and in such a manner that you would be resentful if they so took from you.’” Ouch, again.

SO, WHERE DOES ALL THIS LEAVE US?

I am no lawyer, and while I played one on stage once upon a time, that still doesn’t really count. My take on this is less sanguine than some of my doubtless better informed colleagues, here, but not here, or even here. Some factors remain that are important to consider and feed my pessimism. While the publishers may not have won a grand slam, they did get back their money, and GSU will have to modify once again its approach to copyright and e-reserves. True, e-reserves remain fair use, but they remain in the bailiwick of the library that is making a good faith effort to abide by fair use. Judge Vinson’s concurring remarks should provide a horrifying backdrop of what could have been: GSU should pay for everything it copies, or words to that effect.

First, fair use is not a blanket protection for anyone who teaches. It is a tool by which professors and teachers may use certain portions of copyright text to aid the transmission of knowledge. Currently, it cannot be a substitute for buying the textbook, asking for permission, or paying a licensing fee id what is needed is a substantial portion of the whole of that work. Blackboard CANNOT become the Wild West (as a colleague puts it) of copyright infringement. Furthermore, just because a professor wants to use a copyrighted work again and again does not make it right. In fact, repetitive use of the same materials semester after semester can become a red flag.

But there is good news: the Copyright Classroom Guidelines (spontaneity, brevity, and cumulative effect) were pretty much dismissed by the Appeals Court as being the porch of copyright, not the house. The guidelines have always been that–guidelines, not law. On the other hand, neither publishers nor authors have exclusive copyright, or absolute copyright. There are exceptions. Consumers of copyrighted materials need to understand that the work or works they wish to use cost publishers more than a little to produce. Taking from them that right, or short-circuiting it, is unfair. While information may want to be free, only Google and social media are making any money off of free content. Certainly the authors are not, and neither are the publishers if they have been involved.

Second, DMCA (digital Millennium Copyright Act) take-down notices are almost as common in academe now as patches on tweed coats once were. And they can be expensive if one is found in violation. Just as you might surf the net for something useful to use in class, so do some publishers surf the net looking for copyright violators–and the have bots helping them find you. While it is very likely a given professor will not be taken to court, his or her university might be. It’s the “deep pockets” theory. If a professor knowingly violates copyright, he or she puts everyone at risk.

Third, copyright is hard to understand, it is muddy water, it is Janus-faced (one decision looks toward publishers, another toward consumers), and trying to figure it all out is very hard to do, even for copyright attorneys. That’s where we in the library can help. If the text you need follows the four factors, we’ll help you with it. If it does not, we’ll seek permission from the copyright holder. If we cannot get that and the text is a “must have” we’ll buy the permission from CCC. If that doesn’t work and we have no link to it in our purchased materials, it may be time to look for something else. Rare is the case where one text on a given topic is all there is.

Fourth, and this really doesn’t apply here, I’m sure, revise and update your syllabus, if not every semester, then certainly every year. I know this is hard to do–I have taught before. But it is good for many reasons, not the least of which is to account for any new information that has been discovered since the last time the course was taught.

Fifth, and last, I know there are universities that seek to challenge copyright by pushing the envelope. We are not one of them. I also know that many want copyright changes, and many are eager to chant the mantra, information wants to be free. All of that is well and good. But do bear in mind that Congress must take up the copyright cudgel because that’s its job. Congress is also the reason we are where we are today with respect to copyright, so be careful what you wish for. Finally, there is a school of thought that says if we all act like copyright is over, no one will get prosecuted. We’re not there yet. Copyright law still applies, and if we are preaching academic integrity to our students, we must also practice it ourselves.

Until all this gets sorted out, open access anyone?

Dacus Spooky Film Festival on Halloween Day!

October 22, 2014 by

Dacus Library invites you to attend the Dacus Spooky Film Festival on Friday, October 31st, from 10am-5pm. There will be 4 classic horror films shown throughout the day (see below for schedule). Come enjoy some free popcorn, soda and sweet treats!

But that’s not all! You could win a goody bag with prizes and candy if you wear a costume and post a selfie taken in the library to our new Instagram account @dacuslibrarypics #dacusboo. If you don’t love scary movies, don’t worry, you can still participate in the selfie costume contest! Come on out! Bring a friend! Get a little spooked! Just don’t be scared of the library!

Dacus Halloween Party Flyer 2014 - landscape 11x17

Film Schedule:

10:00 am   The Brain That Wouldn’t Die

11:45 am   Carnival of Souls

1:30 pm   House on Haunted Hill

3:00 pm   Night of the Living Dead

Library Hours This Week

October 20, 2014 by

Dacus Library hours for the week of Monday, October 20th to Sunday, October 26th:

Note: The library will open at 8:00 AM on Monday, October 20th and 24 hour access will resume.

     Building Hours     Reference Hours
Mon. – Wed.      24 Hours
    9:00 AM to 9:00 PM
Thursday      24 Hours     9:00 AM to 6:00 PM
Friday      Closes at 7:00 PM     9:00 AM to 5:00 PM
Saturday      12:00 PM to 7:00 PM     1:00 PM to 7:00 PM
Sunday      Opens at 1:00 PM     1:00 PM to 9:00 PM

24 hour access to the library begins at 1:00 PM Sundays
and runs until 7:00 PM Fridays.
The Information Commons desk opens at 8:00 AM and closes at midnight during 24 hour access.
Only the main floor remains open after midnight.

View complete library schedule.

Don’t forget, you need a valid Winthrop ID card in order to access the library.

Fall Break Hours Start Thursday, October 16th, at Dacus Library

October 16, 2014 by

Dacus Library will have alternate hours during Fall Break. Starting on Thursday, October 16th, we will close at 7:00 PM, on Friday we will be open from 8:00 AM to 3:00 PM, and then Saturday and Sunday we will be closed. Monday, October 20th, we will reopen at 8:00 AM and 24 hour access will resume.

Check our Hours Page for a more complete listing of our hours.

leavesPhoto by Stanley Zimny. A Creative Commons Attribution-NonCommerical license applies to this photo.

Quis Custodiet Ipsos Custodes?

October 15, 2014 by

And here we go again with those dead languages, right? Not exactly. The Latinism is known by many outside the so-called clerisy. In short, it means “who watches the watchmen.” Traditionally it was thought to be from Juvenal and his Satires but now even that is called into question as being a later addition. Whoever said it, it needed to be said. It strikes at one of our more striking fears: who is guarding the guards?

Most will roll it out to gain political points, but our concern for now is … eBooks. Yes, that’s right, eBooks. It should come as no surprise–but it probably will–that while you read certain eBooks, they are reading you. Amazon has been spying on you for years, as has Facebook and other social media. Now it comes about that Adobe eBook editions is sending back your reading habits to Adobe Editions. The newest Adobe, Digital Edition 4, is the culprit, and it sends a considerable amount of data back on you to Adobe Editions.

But wait, there’s more.

While this little app is there, it also collects data about all your eBook reading habits–what you read, what you opened, in what order you read the books, as well as any other eBooks on your computer. Adobe responded to the American Librarian Association’s charge of an “egregious data breach” by telling ALA that is would repsond at a later time. In other words, we’ll get back to you on that.

Ah, the Internet!

Earlier I said that this shouldn’t surprise, but it will. It should not surprise because everyone associated with the Internet–with the possible exception of its creator, Sir Berners-Lee (No, not Al Gore), brooks no protection of your privacy. In 1999, Sun Microsystems chief Scott McNealy proclaimed, “You have zero privacy anyway. Get over it.” Just four years ago, in 2010, Mark Zuckerberg of Facebook fame, reminded us that the “age of privacy is over.” It really should come as no surprise. All social media depend upon your privacy being, well, public. You simply cannot be on the Web and remain a private individual.

What should astonish us is that we flail ourselves like celibate monks when the government imposes some small intrusions for our safety and well-being. We’ve made a saint out of Edward Snowden, and we’ve canonized the late and tragic Aaron Swartz. But we sit idly by and let social media make a mockery of our desire to lead private lives, desperate or not.

Information wants to be free, or so we’re told. Apparently it also wants to be shared, at the mere expense of your privacy.

It’s a brave, new world, after all.

Library Hours This Week

October 13, 2014 by

Dacus Library hours for the week of Monday, October 13th to Sunday, October 19th:

Note the alternate hours due to Fall Break. The Library will reopen on Monday, October 20th at 8:00 AM and 24 hour access will resume.

     Building Hours     Reference Hours
Mon. – Wed.      24 Hours
    9:00 AM to 9:00 PM
Thursday      Closes at 7:00 PM     9:00 AM to 6:00 PM
Friday      8:00 AM to 3:00 PM     9:00 AM to 3:00 PM
Saturday Closed
Sunday Closed

The Information Commons desk opens at 8:00 AM and closes at midnight during 24 hour access.
Only the main floor remains open after midnight.

View complete library schedule.

Don’t forget, you need a valid Winthrop ID card in order to access the library.

Librarian Spotlight

October 8, 2014 by

This month’s librarian spotlight is on Jackie McFadden, Dacus Library’s Information Literacy Coordinator.

JHM

Jackie has worked at Dacus Library for 13 years. As Information Literacy Coordinator, she not only coordinates the library instruction program, but also manages the 118-year-old Federal Depository Library (government documents collection) at Dacus and assists students and faculty at the Information Commons as a reference librarian.

Jackie has a BA degree in Business Administration from Columbia College and a Master of Library and Information Science (MLIS) degree from the University of South Carolina. She currently is researching information literacy and the way that students seek, process, and retain information.

Some of Jackie’s interests include South Carolina history, photography, cats, dogs and horses. You can view some of her beautiful photography on her website.  She is currently working on a documentary about the Marsh Tacky horse with MELT, LLC. You can watch the movie trailer here. She is also writing a book about the history of the Marsh Tacky horse in South Carolina with Patti Stafford that will be published by History Press in 2015. She has been asked to submit 80 original photographs for the book. Jackie says “the Marsh Tacky remains on the endangered list and I hope that the book and documentary will generate more interest in the breed.  There are now 325 living Marsh Tackies.  I own 2 of them, “Little Miss” River and Yago.” Pictured below is Jackie with River. She also has several cats and dogs, all are rescues ranging in age from 5 months to 19 years.

Jackie and River

As part of her library duties Jackie has developed research guides on a variety of subjects including, but not limited to, Biology, Legal Research, and Government Information. You can take a look at the complete list here. If you’re needing to do some biological research, check out her most popular guide on Biology to find a variety of trustworthy resources. If you would like to meet with Jackie for a research consultation, she is happy to set up an appointment. Just send an email to mcfaddenj@winthrop.edu.

Dacus Library has many wonderful librarians on staff who all teach library instruction classes, work various hours on the reference desk, and do collection development work. Each librarian also has other specialized responsibilities within the library. You can view all of our previous librarian spotlight posts here or check back at the beginning of the month for a new one!

Library Hours This Week

October 6, 2014 by

Dacus Library hours for the week of Monday, October 6th to Sunday, October 12th:

     Building Hours     Reference Hours
Mon. – Wed.      24 Hours
    9:00 AM to 9:00 PM
Thursday      24 Hours     9:00 AM to 6:00 PM
Friday      Closes at 7:00 PM     9:00 AM to 5:00 PM
Saturday      12:00 PM to 7:00 PM     1:00 PM to 7:00 PM
Sunday      Opens at 1:00 PM     1:00 PM to 9:00 PM

24 hour access to the library begins at 1:00 PM Sundays
and runs until 7:00 PM Fridays.
The Information Commons desk opens at 8:00 AM and closes at midnight during 24 hour access.
Only the main floor remains open after midnight.

View complete library schedule.

Don’t forget, you need a valid Winthrop ID card in order to access the library.

Mobile Charging Chairs Are Back at Dacus to Stay!

October 1, 2014 by

outletchairTreySome of you might remember testing out a chair last spring semester that had an electrical outlet in it to charge your laptop or mobile device. Well we received so much positive feedback from you that we decided to purchase a few! You’ll see two of them on the main floor, both located to the right of the Information Commons desk if you’re walking in the front doors, and then one more is located on the second floor near the popular fiction/dvds area at the top of the stairwell.

               outletchairstudent

We think you’ll find these new chairs are not only comfortable but are useful while studying, reading, meeting with a group or just taking a breather. If you haven’t tried them out, go for it! Get recharged!

50th Anniversary of Integration

October 1, 2014 by

The 50th anniversary of integration at Winthrop will be commemorated October 6-12th with a variety of programming.

The opening reception will take place at the Louise Pettus Archives & Special Collections (700 Cherry Rd.) on Monday, October 6th from 4-6pm. The reception is sponsored by the Office of the President, Friends of Dacus Library, and the 50th Anniversary Coordinating Committee.

One other program we want to give an extra little plug for is the Lunch & Learn: Speak of the Times: A Conversation with Winthrop’s Firsts. It takes place on Thursday, October 9th, from 11am-noon in the Tuttle Dining Room. This panel Ellen and Dotdiscussion features two of the first African-American students, Cynthia Plair Roddey ’67 and Delores Johnson Hurt ’68, plus Dacus Library’s very own Ellen Owens and Dorothy Barber (pictured left, respectively), the first African-American office staff at Winthrop, hired in 1970. This panel will be moderated by Nathaniel Frederick of the mass communication faculty.  Attendees should bring their own lunch; beverages and desserts will be provided.

Take a look at the full line-up of great programs, events and exhibits going on throughout the week!


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