Fair Use

Letter from US Department of Justice Declining to File Amicus Brief in Cambridge University Press v. Mark Becker (Feb. 22, 2013)

The US Department of Justice (DOJ) decided not to participate in the appeal of the case Cambridge University Press v. Mark Becker as amicus curiae. The case concerns the use at Georgia State University (GSU) of electronic course reserves (e-reserves) and electronic course sites to make excerpts from academic books available online to students enrolled in particular courses. It was widely reported that the US Copyright Office requested that the DOJ file an amicus brief either on the side of the publishers or as a neutral party. On February 22, 2013, the DOJ sent this letter to the court stating that the US Attorney General had decided not to file an amicus brief in the case.

pdf ltr-doj-re-gsu-ereserves-22feb13.pdf

 
 

Motion by US Department of Justice to Extend Time in Which to File Amicus Brief in Cambridge University Press v. Mark Becker

The US Department of Justice (DOJ) is evaluating whether to participate in the appeal of the case Cambridge University Press v. Mark Becker as amicus curiae. The case concerns the use at Georgia State University (GSU) of electronic course reserves (e-reserves) and electronic course sites to make excerpts from academic books available online to students enrolled in particular courses. It was widely reported that the US Copyright Office requested that the DOJ file an amicus brief either on the side of the publishers or as a neutral party. On January 25, 2013, the DOJ requested an extension of the time they have to file an amicus brief.

pdf gsu-extension-motion-usgov-jan2013.pdf

 
 

Briefing: Success of Fair Use Codes of Best Practices

Does the approach of creating a code of best practices, anchored in professional practice, actually work to expand the utility of fair use? What has happened to others who used codes of best practices to gain access to their rights?

This topic is discussed at length in Aufderheide and Jaszi, Reclaiming Fair Use (University of Chicago Press, 2011), but some specific examples include:

 
 

Briefing: Copyright Education, Academic Integrity Codes, and Fair Use

Does your university offer intellectual property education to incoming students, or have an academic integrity policy that addresses copyright issues? These are important areas where librarians can be of service in offering balanced information about copyright and fair use.

 
 

Briefing: Demystifying Technical Protection Measures (TPMs) in the Library

The Code of Best Practices in Fair Use for Academic and Research Libraries suggests at various points that librarians consider the use of appropriate “technical protection measures” when making digitized materials available on-line, as a way of bolstering their fair use claims. Many libraries already employ such measures as a risk-management strategy.

 
 

Briefing: The Cost of Conservatism to Academic and Research Librarians’ Mission

When teachers bring Stacey, a librarian at a Midwestern private university, their course materials to upload on the university’s e-reserves system, she always checks to make sure that the course material has not been uploaded before—or at least, not in the last three years. If it’s fresh material, and it’s only a small fraction of the original work, she’s pretty sure that uploading it for the students to study could be considered a “fair use.” If it has been uploaded before, she tries to license the material, or have the professor find a substitute that the professor hasn’t used before. She knows that at some universities, e-reserves policies are more liberal, but her institution can’t afford a legal challenge, so she likes to err on the conservative side. After all, you can’t be too careful.

 
 

Briefing: Accessibility, the Chafee Amendment, and Fair Use

The Fifth Principle in the Code of Best Practices in Fair Use for Academic and Research Libraries is entitled "Reproducing material for use by disabled students, faculty, staff, and other appropriate users." It describes in some detail the circumstances in which making and providing copies of collection materials in formats that are accessible to persons with disabilities constitutes fair use, as well as certain limitations to which that general principle is subject.

 
 

Issue Brief: Massive Open Online Courses - Legal and Policy Issues for Research Libraries (Oct. 22, 2012)

The advent of Massive Open Online Courses raises serious legal questions that in turn pose important and fundamental policy challenges for research libraries. As universities rush to find ways to add courses to emerging MOOC platforms, research libraries are being asked to take on new responsibilities (or new versions of old responsibilities) to support this new mode of teaching and learning.

pdf issuebrief-mooc-22oct12.pdf

 
 

Hon. Harold Baer, Jr. Decision in Authors Guild v HathiTrust (Oct. 10, 2012)

Before the Court are two motions for judgment on the pleadings and three motions for summary judgment.

pdf hathitrust-decision10oct12.pdf

 
 

Success of Fair Use Codes of Best Practices

Does the approach of creating a code of best practices, anchored in professional practice, actually work to expand the utility of fair use? What has happened to others who used codes of best practices to gain access to their rights? This document describes specific examples of success with using codes of best practice.

pdf fair-use-codes-success.pdf

 
 

Amici Curiae Brief in Support of Kirtsaeng

The Association of Research Libraries (ARL) joined the American Library Association (ALA) and the Association of College and Research Libraries (ACRL), who all work collectively as the Library Copyright Alliance (LCA), to file an amicus curiae brief with the Supreme Court of the United States in support of petitioner Supap Kirtsaeng in the case Kirtsaeng v. Wiley & Sons.

pdf lca-kirtsaeng-brief-3july2012.pdf

 
 

Georgia State University (GSU) Fair Use Decision Recap and Implications: Issue Brief

On Friday, May 11, 2012, Judge Orinda Evans released her 350-page opinion in the copyright infringement lawsuit against Georgia State University. This issue brief summarizes the key rulings in the case and discusses some possible consequences for libraries generally.

pdfissue-brief-gsu-decision-15may12.pdf

 
 

Georgia State University (GSU) Fair Use Decision Recap and Implications: Memo to ARL Library Directors

This memo summarizes the key rulings in the Georgia State University (GSU) lawsuit concerning the use of electronic course reserves and discusses some possible consequences for libraries generally.

pdfmemo_gsudirectors_15may12.pdf

 
 

Membership Meeting 2012 (Spring): Phase Three: The Code of Best Practices Hits the Road

Proceedings of the 160th ARL Membership Meeting, May 2012.

pdf mm12sp-butler.pdf

 
 

Authors Guild v. Hathi Trust Amicus Brief

In their motion for partial judgment on the pleadings, Plaintiffs in Authors Guild v. HathiTrust advance a radical and unprecedented interpretation of 17 U.S.C. § 108 that threatens the most routine library operations.

pdf amicus-hathi-trust-20apr12.pdf

 
 

Why Best Practices in Fair Use? A Compendium of Key Articles

pdf fair-use-code-key-articles.pdf

 
 

Code of Best Practices in Fair Use: FAQ for Librarians/General Overview

pdf fair-use-code-faq-libs.pdf

 
 

Academic Research on Fair Use and Codes of Best Practices

Flyer discussing the advantages of an approach to determining fair use that is rooted in professional consensus, rather than (for example) negotiating standards with right holders or consulting legal experts.

pdf fair-use-code-academic-research.pdf

 
 

Fair Use and Education: The Way Forward

The ability to make reasonable "fair use" of copyrighted material is both economically and culturally important to the enterprise of education. In asserting fair use, teachers, librarians, and others cannot rely on a claim of "educational exceptionalism," for which there is no clear basis in U.S. Copyright law. Instead, they should seek to take advantage of current trends in copyright caselaw, including the marked trend toward preferring uses that are "transformative," where the amount of content used is appropriate to the transformative purpose. Over twenty years, we have accumulated considerable information about what constitutes "transformativeness," and members of the education community are well-positioned to provide persuasive narratives explaining how educational uses significantly repurpose and add value to the copyrighted content they incorporate. Published in Law & Literature, Vol. 24 No. 3 (Fall 2012).

pdf jaszi-education-and-fair-use.pdf

 
 

Copyright Education, Academic Integrity Codes and Fair Use

Flyer discussing copyright education and academic integrity codes.

pdf Code-brief-copyright-education-2012.pdf

 
 

The Law of Fair Use and the Illusion of Fair-Use Guidelines

Several "official" and formal guidelines that attempt to define the scope of fair use for specific applications—notably for education, research, and library services—have emerged in the years since passage of the Copyright Act of 1976. Although some interested parties and some governmental agencies have welcomed these guidelines, none of them ever has had the force of law. This article analyzes the origins of guidelines, the various governmental documents and court rulings that reference the guidelines, and the substantive content of the guidelines themselves to demonstrate that in fact the guidelines bear little relationship, if any, to the law of fair use.

pdf fair-use-code-crews.pdf

 
 

Code of Best Practices in Fair Use: FAQ for Professors

pdf fair-use-code-faq-profs.pdf

 
 

Code of Best Practices in Fair Use: FAQ for Students

pdf fair-use-code-faq-students.pdf

 
 

Code of Best Practices in Fair Use: Designing the Public Domain

This Note from the Harvard Law Review organizes research on pro-social motivation around the motivation-fostering effects of empowerment, community, and fairness. By incorporating these norms into the cultural architecture of the public domain, we can promote greater information production at less cost than by relying solely on the intellectual property system's traditional tools of exclusion.

pdf fair-use-code-harvard.pdf

 
 

Code of Best Practices in Fair Use: Fair Use and Research Libraries

Discusses copyright and its problems, why librarians need useable fair use, and the Code of Best Practices in Fair Use for Academic and Research Libraries

pdf fair-use-code-slides-lib.pdf

 
 

Code of Best Practices in Fair Use: Fair Use and Students

Discusses why students need to understand fair use, copyright and its problems, how codes of best practices help

pdf fair-use-code-slides-student.pdf

 
 

USPTO Position on Fair Use of Copies of NPL Made in Patent Examination

Memorandum from Bernard J. Knight, Jr. discussing the application of the fair use doctrine to the use of non-patent literature (NPL) in the patent examination process.

pdf fair-use-code-uspto.pdf

 
 

Accessibility, The Chafee Amendment, and Fair Use

Flyer discussing fair use and the reproduction of material for use by disabled students, faculty, staff, and other appropriate users.

pdf Code-brief-chaffee-amendment-2012.pdf

 
 

You Can't Be Too Careful: The Cost of Conservatism to Academic and Research Librarians' Mission

Argues the value of the Code of Fair Use for Academic and Research Libraries to help librarians determine fair use guidelines for their institutions.

pdf fair-use-code-cost-of-conservatism.pdf

 
 

In the Matter of Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies: Comments of the Library Copyright Alliance and the Music Library Association

Comments of the Library Copyright Alliance and the Music Library Association.

pdf noi1201comments05.pdf

 
 
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