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Eyes on the Fair Use Prize

J.K. Rowling has won her copyright infringement lawsuit against Steven Vander Ark; a trial judge in New York concluded that the defendant’s Harry Potter Lexicon is not protected under the fair use doctrine.  The New York Times has a report on the case here.   Stanford’s Fair Use Project, which handled the defense, has posted a copy of the judge’s opinion here.

But this isn’t the only fair use news today, and for my money it may not be the most significant.

The Harry Potter Lexicon opinion is long and detailed and is filled with interesting and curious things (much like the Harry Potter books themselves), all of which will no doubt be the subject of intense blogosphere scrutiny.  (Derek Bambauer at Info/Law leads things off.)  The court found that the Lexicon, as a non-fiction reference guide to a series of fictional works, infringes as a prima facie matter because it is “substantially similar” to the Harry Potter books.  At the same time, the Lexicon is not a derivative work.  That falls into the “curious” category.  Most copyright lawyers would have thought that if the Lexicon infringes, it infringes because it is a substantially similar copy of the Harry Potter books (but it’s clearly not), or is a derivative work (but the court says that it’s not).  In fact, earlier in the case Tim Wu argued (persuasively, I thought) that both this case and the copyright system in general would be better served by arguments that the scope of the prima facie case for infringement is comparatively narrow.  Fair use and impilied license would be reserved for rarer, more significant cases.  I blogged about Tim’s argument, and related notes in the Lexicon case, earlier.  Under Tim’s theory, Rowling’s case would have failed even before fair use got argued.  In a confusing sense, the court followed the theory – but considered the fair use claim on the merits anyway.  Perhaps the Second Circuit will have a chance to clear this up on appeal. 

The interesting half of the opinion, from my point of view, is the treatment of the fair use argument.  In effect, and without belaboring a critique of the full opinion, the court decided that the Lexicon, while alleged to be a work of scholarship, wasn’t scholarly enough.  In fact, the defense and the court agree that Vander Ark wasn’t engaged in the pursuit of scholarship; the Lexicon was a reference guide.  I can’t disagree with what was argued at trial, but the structure of the court’s response makes clear that the difference isn’t significant.  Even if Vander Ark was trying to produce a reference guide, which might be a legitimate use, the Lexicon isn’t enough like a reference guide, or consistently like a reference guide, to justify the claim here.  When courts have rejected fair use arguments by alleged scholars, the arguments have been roughly the same:  This wasn’t really scholarship.   On this count the outcome isn’t surprising to me, even if many people would disagree with the court’s characterization of the Lexicon.  Fair use cases frequently turn on whether the defendant was “really” doing what the defendant claims to have been doing — journalism, scholarship, teaching, etc.  Again, it will be interesting to hear what the Second Circuit does with this analysis, if it gets the chance.

The other fair use news of the morning, and the news that may be more broadly significant — if only because it affects so many more people (how many reference guide producers are there in the world?) — comes from the Copyright Clearance Center.  The Chronicle of Higher Ed reports this morning that the CCC is now offering blanked permission licenses to colleges and universities of all sizes:

The Copyright Clearance Center, which helps colleges buy rights to reprint journal articles, book chapters, and other material in course packs and for other uses, now offers its blanket-pricing option to large institutions that were previously ineligible. And it has signed up one of the country’s largest universities, the University of Texas at Austin.

The nonprofit group began offering the blanket-pricing option last year at the request of college officials who complained they were spending too much time and money clearing rights each time an article or book chapter was used on campus. At first the group offered the “annual copyright license,” as it is known, only to colleges with 5,000 students or fewer. In March the group began extending the offer to all institutions. Thirty-three have signed up so far.

Tim Bowen, product manager for academic licensing for the group, said that the cost of the annual license varies based on the size and type of college. The price ranges from about $7 per student to about $10 per student, he said. “A community college is not going to pay $7 a head because it’s much lower for them,” he added, noting that such pricing is typical for other types of content as well. “A medical school is going to pay more.”

Not everything is covered under the blanket plan. Using texts for promotional use or for interlibrary loans requires clearance on a case-by-case basis, for instance.

For many institutions, the transactions costs savings here are obvious.  But the solution comes with costs, and the costs should be noted.  By burying the question of permission in a blanket, the CCC system hides important questions and nuances about production, consumption, and re-use of copyrighted material from authors, publishers, teachers, and students — questions that the fair use doctrine is designed, in part, to stimulate and help resolve.  To paraphrase and re-purpose Nick Carr’s recent Postman-esque essay on Google, the Copyright Clearance Center is making us stupid.  In an earlier story about the original blanket licenses, this quotation in the Chronicle captured much of the problem:

But some librarians are ambivalent about blanket licenses, Mr. Rehbach says [Jeffrey R. Rehbach, the library-policy adviser at Middlebury], because they fear that colleges will pay for copyright licenses instead of asserting their rights under fair-use doctrine. “We debate back and forth whether this is the best model for us,” he says. “As we move toward more licensed products, are we giving up basic rights under the law?” 

Quite right. I blogged about similar concerns in other CCC contexts, here and here.

2 thoughts on “Eyes on the Fair Use Prize”

  1. The other problem with the CCC’s assertion comes from Tasini. Remember, the CCC refuses to deal with the actual copyright holders of works from periodicals; it deals only with the periodical itself. In turn, this means that a copyright holder who did not consent to reproduction of a work provided to a periodical as a freelancer similarly is not bound by the periodical’s consent to participate in CCC.

    Sadly, due to the arrogance and ignorance of management at the CCC (and its commercial competitors — the largest of which, ironically, is a subsidiary of a Certain Oligopolist in legal publishing), individual authors who did not, and would not, consent to CCC licensing are faced with having to deal with reusers who usually had a good-faith belief that they were complying with the relevant licensing requirements at the time they made the CCC-authorized reuse. This is a lose-lose-lose situation that puts money in CCC’s pocket and takes it out of the authors’, while forcing the authors to act in a way that seems unreasonable to outside observers… and particularly to those who believe the CCC’s bloviating on its role and rights.

    Disclosure: I have engaged more than once with the CCC on this issue, and I have represented more than one copyright holder in disputes that eventually resulted in both the reuser and copyright holder using wash-your-mouth-out-with-soap language about the CCC’s practices and attitude.

  2. Thanks for the presentation of my idea.

    I was thinking of whether I’d ever put that idea in print, and in fact I did, in a paper called “tolerated use.”

    I think it is on SSRN somewhere.

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