Oral arguments were heard by the 11th Circuit Court of Appeals on November 20th – with both sides getting pelted with questions they didn’t expect – Plaintiff’s lawyers were told to save the claptrap about how civic minded their clients were and get to the point (I see that as a good sign). Kevin Smith of Duke University thought the day went poorly for GSU especially with respect to the Appeals Court seeming to be skeptical of the 10% bright line that Judge Evans seemed to establish in the case – this was of concern to me from the start as Fair Use has always been context based and flexible – taking away that flexibility (and ability to argue the facts of the situation) would be a terrible result. It appear the Appeals Court may remand for more fact finding – I certainly hope we get some clarification on the 10% standard. Read more here from Smith’s analysis here and watch the post argument panel video of attorneys that gathered at GSU after the arguments here.
Kevin Smith of Duke University recently blogged about whether it was time for those universities and colleges using the Copyright Clearance Center’s (CCC) rights clearance services to reconsider using the service since it funded the lawsuit against Georgia State University (even after it changed its e-reserves policy). CCC is now funding the appeal and being joined by one of its partners the American Association of University Presses which filed an amicus brief with the court on behalf of the plaintiff publishers. I share Mr. Smith’s concern and believe all institutions and private companies for that matter should reconsider using CCC services especially in light of the following:
1. CCC, while a non-profit, disbursed $171.1 million in 2011 to rightsholders and had disbursed over $1.3 Billion in the 10 years prior to that time. CCC’s licensing revenue has balloned over the past few years and we see the company aggresively investing that money in suing any institution it believes threatens its business model – do we really want to feed so that at some point in the near future we really don’t have a choice to go through them or not – what happens when it becomes the scholarly equivalent of the Motion Picture Association of America or the Recording Industry of American threatening to sue and imprison faculty, students (and librarians) on chumped of charges of piracy – I hate to paint a picture of a dystopian future but that is where I see this going unless action is taken now; and
2. Not only is the CCC plowing money into lawsuits but it has an education (propaganda) machine that attempts to intimidate those who wish to exercise their fair use rights. Noticeably there is no reference to the original Constitutional mandate
of copyright promoting learning and the useful arts – hard to square that with suing universities I guess?
As Mr. Smith points out, librarians have an obligation to ensure that faculty and students have access to the material they need to conduct research and maintain high standards of scholarship and those critical matters have to be considered when determining whether one should continue to utilize certain resources. However, I would argue that for the money spent on CCC services universities could develop their own systems for permissions, including a service that promotes fair use and would inform faculty and students if something were in the public domain and not charge for it, not invest money in litigation against centers of education, advocate for faculty, students, and learning in general and not pose a threat to becoming a monopoly that strangles the life out of fair use.