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Georgia State University E-Reserves Case: Eleventh Circuit Endorses Flexible Approach to Fair Use

Georgia State University LibraryGSU Library
image © Jason Puckett
On Friday, October 17, 2014, the US Court of Appeals for the Eleventh Circuit issued its ruling in the Georgia State University (GSU) case concerning the use of excerpts of academic books for electronic course reserves. The Eleventh Circuit reversed and remanded the decision to the district court. In doing so, the court upheld the importance of the flexible application of fair use. Importantly, the Eleventh Circuit did not rule on whether each of the uses by GSU were fair uses or not, but instead found fault with the district court’s methodology, which used bright-line rules and an arithmetic approach (i.e., if three of the four factors favor fair use, then the use is fair). Assuming that litigation goes forward rather than the case being settled, the district court will need to revisit its fair use analysis, but could potentially again find that GSU’s uses were fair use for most of the works at issue.

For a more detailed analysis of the October 17 ruling, see “In Georgia State University E-Reserves Case, Eleventh Circuit Endorses Flexible Approach to Fair Use,” on the ARL Policy Notes blog.

 
 

Videos Show Value of Code of Best Practices in Fair Use

greg-cram-fair-use-code-videoGreg Cram on NYPL’s use of the CodeToday, October 21, 2014, ARL released three videos on the Code of Best Practices in Fair Use for Academic and Research Libraries, a clear and easy-to-use statement of reasonable approaches to fair use of copyrighted material, developed by and for librarians who support academic inquiry and higher education. With generous support from The Andrew W. Mellon Foundation, the new videos capture how the Code has assisted many communities by providing helpful guidance about the scope of best practice when fair use comes into play.

 
 

Video: "Code of Best Practices Interview: Peter Jaszi and Brandon Butler"

American University law professors Peter Jaszi and Brandon Butler discuss the development and roll-out of the Code of Best Practices in Fair Use for Academic and Research Libraries. (16 minutes)

 
 

Video: "Code of Best Practices Interview: Peter Jaszi and Patricia Aufderheide"

American University professors Peter Jaszi and Patricia Aufderheide discuss the development of the Code of Best Practices in Fair Use for Academic and Research Libraries. (11 minutes)

 
 

Video: "Code of Best Practices in Fair Use at the New York Public Library"

In this four-minute video, Greg Cram of the New York Public Library discusses NYPL's application of the principles of fair use.

 
 

Library Copyright Alliance Files Amici Brief in Authors Guild v. Google

screenshot of Mrs Dalloway in Google BooksGoogle BooksOn July 8, 2014, the Library Copyright Alliance (LCA)—the American Library Association (ALA), Association of Research Libraries (ARL), and Association of College and Research Libraries (ACRL)—filed an amici brief (PDF) in the US Court of Appeals for the Second Circuit in Authors Guild v. Google in favor of Google’s transformative use in creating Google Book Search (GBS). The Southern District of New York previously ruled in favor of Google, finding that GBS provided significant public benefits and constituted fair use.

 
 

Authors Guild v. HathiTrust: Implications for Libraries

open-book-folded-pagesimage © Thomas HawkJonathan Band, policybandwidth and legal counsel to the Library Copyright Alliance (LCA), released on July 7, 2014, an analysis of the recent Authors Guild v. HathiTrust decision, “What Does the HathiTrust Decision Mean for Libraries?” (PDF). As Band notes, “The decision has implications for libraries that go far beyond the specific facts of the case. This paper offers some preliminary thoughts on what these implications may be.” The paper reviews several issues including mass digitization and storage, access to works, suggestions concerning other forms of access, and associational standing. Band concludes:

 
 

White v. West Publishing 2014 Decision

In July 2014, the district court issued its full memorandum and order in White v. West Publishing, explaining that three of four fair use factors weighed in favor of a finding of fair use while the remaining factor was neutral. 

pdfWhite-v-west-publishing-decision-3jul2014.pdf

 
 

Authors Guild v. HathiTrust Decision (June 2014)

On June 10, 2014, the Court of Appeals for the Second Circuit affirmed the lower court decision in Authors Guild v. HathiTrust in favor of HathiTrust Digital Library. 

pdfagvhathitrust-decision-jun2014.pdf

 
 

LCA Amicus Brief in Authors Guild v. Google, Inc. Appeal

On July 8, 2014, the Library Copyright Association filed an amicus brief for Authors Guild v. Google, Inc. in the US Court of Appeals for the Second Circuit.

pdfamicus-GoogleBooksAppeal-final-8jul2014.pdf

 

 
 

Libraries Applaud Landmark Copyright Ruling Affirming Fair Use

open-book-folded-pagesimage © Thomas HawkThe Library Copyright Alliance is extremely pleased with today’s decision by the US Court of Appeals for the Second Circuit in Authors Guild v. HathiTrust, finding in favor of fair use. The Library Copyright Alliance filed an amicus brief (PDF) in the case, supporting HathiTrust’s position and the lower court’s finding of fair use.

 
 

Orphan Works and Mass Digitization Roundtables: Myths and Realities of Copyright and Fair Use

orphans-home-atchison-kansas-1911-postcardOrphans’ Home, Atchison, Kansas, 1911, image © Thiophene GuyOn March 10–11, 2014, the US Copyright Office convened roundtables on orphan works and mass digitization. Several participants attacked fair use and libraries, misstated the purpose of the copyright system in the United States, or inaccurately portrayed the activities of HathiTrust. An ARL Policy Notes blog post examines some of these misconceptions, or myths, cited at the roundtables and responds to these inaccuracies. An earlier ARL Policy Notes blog post recaps the roundtable discussions, which covered best practices, fair use, licensing solutions, and the issue of whether orphan works and mass digitization need to be treated separately.

 
 

Fair Use Promoted at House of Representatives Copyright Hearing

james-neal-testifying-at-house-copyright-hearingJames Neal testifying at House copyright hearingJames G. Neal, Columbia University’s university librarian and vice president for information services, served as the voice of libraries to the US House of Representatives Judiciary Subcommittee on Courts, Intellectual Property, and the Internet on Wednesday, April 2, 2014, when the subcommittee held a hearing on preserving and reusing copyrighted work. The hearing, “Preservation and Reuse of Copyrighted Works,” explored a variety of copyright issues, including orphan works, mass digitization, and specific provisions of the Copyright Act that concern preservation by libraries and archives.

 
 

Columbia’s James Neal Testifies before US House Judiciary Subcommittee Hearing on Preservation and Reuse of Copyrighted Works

james-g-nealJames G. NealOn Wednesday, April 2, 2014, the US House Committee on the Judiciary, Subcommittee on Courts, Intellectual Property, and the Internet continued its copyright review. This hearing focused on “Preservation and Reuse of Copyrighted Works” with six panelists: Gregory Lukow (chief, Packard Campus for Audio Visual Conservation, Library of Congress), Richard Rudick (co-chair, Section 108 Study Group), James G. Neal (vice president for information services and university librarian, Columbia University), Jan Constantine (general counsel, the Authors Guild), Michael C. Donaldson (partner, Donaldson + Callif, LLP, on behalf of Film Independent and International Documentary Association), and Jeffry Sedlik (president and chief executive officer, PLUS Coalition). Written testimony from each witness is available on the House Judiciary Committee website.

James Neal’s statement (PDF), endorsed by the Library Copyright Alliance (LCA), provides that the “overarching point is that the existing statutory framework, which combines the specific library exceptions in Section 108 with the flexible fair use right, works well for libraries, and does not require amendment.” In reaching this point, the written statement goes through four issues: (1) the importance of library preservation, (2) how the library exceptions under Section 108 supplement rather than supplant fair use, (3) the diminished need for orphan works legislation, and (4) perspective on the HathiTrust case.

 
 

Scope of Fair Use: Library Copyright Alliance Submits Statement for House Judiciary Hearing

fair-use-infographicYesterday, January 28, 2014, the US House of Representatives Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held another hearing on copyright review. This hearing focused on the scope of fair use and included five witnesses: Peter Jaszi (professor, American University), June Besek (professor, Columbia University), Naomi Novik (author and co-founder, Organization for Transformative Works), David Lowery (singer/songwriter and lecturer, University of Georgia), and Kurt Wimmer (general counsel, Newspaper Association of America). In advance of the hearing, the Library Copyright Alliance (LCA) submitted a written statement (PDF) discussing how libraries rely on fair use in order to serve their users and meet their mission, how the federal government relies on fair use for photocopying and in the patent examination process, and how rights holders rely on fair use in developing new works. The LCA statement concludes that no changes are needed to the fair use doctrine.

 
 

Copyright Week Explores Principles of Copyright Policy

copyright-week-logoThis week, the Electronic Frontier Foundation (EFF) is hosting Copyright Week, with each day devoted to a different issue. Copyright Week will last six days, ending on Saturday, January 18, 2014, the two-year anniversary of the Internet blackouts protesting the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA). ARL and 16 other organizations are participating in Copyright Week. Throughout the week, the participants will discuss key principles that should guide copyright policy.

 
 

Library Copyright Alliance Submits Comments on Copyright Reform to Commerce Department

green crop circles including copyright symbolremix of image by Patrick HoeslyOn January 8, 2014, the Library Copyright Alliance submitted additional comments (PDF) on the US Department of Commerce “green paper,” Copyright Policy, Creativity, and Innovation in the Digital Economy (PDF), following a public meeting held by the Commerce Department in December. The post-meeting comments focus on four issues: the recent fair use court decision in the case Bouchat v. Baltimore Ravens, digital preservation, remixes, and collective rights organizations.

 
 

Library Copyright Alliance Additional Comments on Commerce Department Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy

On January 8, 2014, the Library Copyright Alliance (LCA), of which ARL is a member, provided these additional comments on a number of issues raised in the recent US Department of Commerce “green paper” on Copyright Policy, Creativity, and Innovation in the Digital Economy. These comments focus on four issues: the recent fair use court decision in the case Bouchat v. Baltimore Ravens, digital preservation, remixes, and collective rights organizations.

pdf lca-commerce-dept-copyright-green-paper-8jan2014.pdf

 
 

Strong Fair Use Decision Issued in Bouchat v. Ravens

baltimore-ravens-playing buffalo-billsimage © Lauren SwiecickiIn a long-running legal dispute between Frederick E. Bouchat and the Baltimore Ravens along with the National Football League (NFL), a federal appeals court has ruled that the use of the former Ravens logo by the Ravens and the NFL was fair use. The case involved the incidental use of copyrighted logos in films about historical events—football games, in this instance.

 
 

Library Copyright Alliance Participates in Public Meeting on USPTO Copyright Green Paper

green crop circles including copyright symbolremix of image by Patrick HoeslyOn Thursday, December 12, the US Department of Commerce hosted a daylong event at the US Patent and Trademark Office (PTO) in Arlington, Virginia, to discuss some of the copyright policy issues raised in the PTO “green paper,” Copyright Policy, Creativity, and Innovation in the Digital Economy (PDF). Each of the following topics was addressed by a panel of speakers representing key stakeholders, moderated by officials from the PTO and the National Telecommunications and Information Administration (NTIA):

 
 

Google Books Case Dismissed—Victory for Fair Use and Libraries

screenshot of Mrs Dalloway in Google BooksGoogle BooksOn November 14, Judge Denny Chin of the Court of Appeals for the Second Circuit ruled that the digitization of millions of books from research library collections was a fair use and dismissed the Authors Guild case against Google and its Library Project, saying that the project “advances the progress of the arts and sciences, while maintaining respectful consideration of the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.” In his decision, Judge Chin cited a November 2012 amicus brief (PDF) submitted by the Library Copyright Alliance (comprised of the Association of Research Libraries, the American Library Association, and the Association of College and Research Libraries). The Authors Guild has stated that they disagree with the decision and plan to appeal.

 
 

Library Copyright Alliance Comments on Commerce Department Green Paper

green crop circles including copyright symbolremix of image by Patrick HoeslyThe US Department of Commerce is seeking comment on the recently released Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy. In response, the Library Copyright Alliance (LCA), of which ARL is a member, provided comments (PDF) on a number of issues raised in the Green Paper. LCA commented on issues relating to statutory damages, online licensing, collective rights organizations, and contractual restrictions on copyright exceptions.

 
 

GSU Copyright Case: Post-Argument Panel to Be Held, Webcast Nov. 19

Georgia State University LibraryGSU Library
image © Jason Puckett
In 2012, the North Georgia District Court ruled largely in favor of Georgia State University (GSU) in the ongoing copyright lawsuit initiated by Cambridge University Press, Oxford University Press, and SAGE Publishers. The decision was the first US federal court decision specifically addressing fair use and electronic reserves. Plaintiff publishers appealed on many points of the ruling.

 
 

Libraries Applaud Dismissal of Google Book Search Case

screenshot of Mrs Dalloway in Google BooksGoogle BooksAfter eight years of litigation, the US District Court for the Southern District of New York today upheld the fair use doctrine when the court dismissed Authors Guild v. Google, a case that questioned the legality of Google’s searchable book database.

 
 

Library Copyright Alliance Comments on Commerce Department Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy

On November 13, 2013, the Library Copyright Alliance (LCA), of which ARL is a member, provided these comments on a number of issues raised in the recent US Department of Commerce “green paper” on Copyright Policy, Creativity, and Innovation in the Digital Economy. LCA commented on issues relating to statutory damages, online licensing, collective rights organizations, and contractual restrictions on copyright exceptions.

pdf lca-commerce-dept-copyright-green-paper-13nov2013.pdf

 
 

Herbert Mitgang et al. v. Google Inc.

Court transcript from Herbert Mitgang, et al., v. Google, Inc. September 23, 2013, hearing before Judge Denny Chin in the US District Court for the Southern District of New York.

pdf Google-Books-court-transcript-23sep2013.pdf

 
 

The Good News about Library Fair Use (infographic)

This infographic by ARL, American University's (AU) Washington College of Law, and AU's School of Communication shows how and why libraries should use the Code of Best Practices in Fair Use for Academic and Research Libraries.

Infographic downloads:

 
 

Infographic Shows Good News about Library Fair Use

Today ARL, American University's (AU) Washington College of Law, and AU's School of Communication released a new infographic that tells the story of library fair use and the Code of Best Practices in Fair Use for Academic and Research Libraries in a clear and compelling way. The infographic is freely available as a full-size PDF, an embeddable PNG for blogs and website, and a print-ready 8.5” x 11” PDF to print and hand out at events.

 
 

Restrictions on the Waiver of Rights

Jonathan Band and Deborah Goldman provide examples of statutory limitations on contractual waivers of rights. These examples come from the US Code; the New York and California Codes; uniform acts; and the European Union. They provide ample precedent for Congress to adopt restrictions on the enforcement of contractual terms that attempt to limit exceptions to the Copyright Act such as first sale or fair use.    


pdf restrictions_waiver_rights_08152013.pdf  
 


 
 

Library Copyright Alliance Releases User Guide to Marrakesh Treaty for Blind

image © Dominique ArchambaultOn June 27, a Diplomatic Conference of the World Intellectual Property Organization (WIPO) held in Marrakesh, Morocco, adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. The Library Copyright Alliance has issued a new “User Guide to the Marrakesh Treaty” (PDF) by Jonathan Band. Read a condensed version of the user guide on the ARL Policy Notes blog.

 
 
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