Discussion on the Monkey Selfie: Copyright and Authorship

If a hundred monkeys type out shakespeare, is it copyrighted? What about if one monkey takes a selfie?

Hi folks,

Next week, Thursday, September 4, from 3 to 5pm, we’ll hold a discussion session in Room 1320 on the “monkey selfie” — is it copyrightable? should it be? why or why not? Photographers, animal rights activists, cognitive scientists, and IP lawyers have been arguing about this issue for a while, but it’s taken on renewed interest in light of the Indonesian macaque selfies made possible by photographer David Slater, who has been claiming copyright over the works.
Snacks provided, but no nit-picking. RSVP to lquilter@library.umass.edu.

For an amusing (but factually inaccurate) “Shouts and Whispers” from the New Yorker, see http://www.newyorker.com/humor/daily-shouts/statement-monkey

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Copyright Updates (August 14, 2014)

Copyright Updates

August 14, 2014

Fair Use Cases

Authors Guild v. HathiTrust (2d Cir. June 10, 2014)

The Second Circuit, also known as the “copyright circuit”, handed down a significant victory for HathiTrust on June 10, 2014.  The short version is that the Second Circuit found that

a)     full-text indexing is “quintessentially transformative”, hence presenting a strong case for fair use and

b)    provision of copies to persons with disabilities, although not transformative, is a strongly protected “purpose”.


The holding that library replacement copies are fair use was overturned, but only because the Second Circuit questioned whether the Authors Guild or any plaintiffs even had standing to challenge HathiTrust on these grounds.


The Authors Guild has until September 9 to ask the Supreme Court for review. The Court is unlike to take the case because it meets none of the traditional standards for Supreme Court review (split among the Circuits, far out of line with existing law, unique question of high importance).


Detailed memo available at http://library.umass.edu/hathitrust-wins-on-appeal.


Authors Guild v. Google (pending 2d Cir.)

This case, which was a strong fair use victory at the lower court in November 2013, is on appeal in Second Circuit; briefing is set for this summer and fall.  However, the Court already signaled this use is likely fair use, when it remanded the case to the lower court to consider fair use.   


Cambridge University Press v. Becker  (pending 11th Cir.)

We are still waiting for the appellate decision in the Georgia State University ereserves case. The oral arguments (November 2013) were worrisome, because the Appeals Court

a)     appeared confused about some basic points of copyright law and fair use and

b)    used the central metaphor of the plaintiff publishers that electronic reserves is a type of coursepack.


White v. West (SDNY July 3, 2014) 

In July 2014, the Southern District Court of New York (the same court looking at the Google Books and HathiTrust cases) held that WestLaw was making a fair use when it digitized and indexed the full text of legal materials for its databases.




American Institute of Physics v. Schwegman (D.Minn. 2013) and Wiley v. Winstead (N.D. Tex. 2013) 

Wiley, the American Institute of Physics, and Blackwell Publishing filed a series of suits arguing that “prior art” demonstrations required by the Patent Office infringed their copyrights. Courts decided two of the cases last year, finding fair use; plaintiffs filed to dismiss a third after the PTO intervened on the side of the defendants, and the two other fair use decisions. A fourth law firm defendant signed a CCC license without waiting for the fair use decisions.


Bouchat v. Baltimore Ravens (4th Cir. Dec. 13, 2013)

A long-running copyright infringement case in the Fourth Circuit over a Baltimore Ravens logo, created by Frederick Bouchat and used in a film production about the Ravens, was found to be fair use. 


Swatch v. Bloomberg (2d Cir. rev. op. May 30, 2014) 

Another fair use finding in the Second Circuit, this time for Bloomberg’s dissemination to subscribers of the full recording of an unauthorized recording of a conference call.

NB: The May 30, 2014 opinion was significantly revised to suggest that the use was “arguably transformative” in purpose.




Other Copyright Issues

ABC v. Aereo (Supreme Court 2014)

US Supreme Court held that online recordings of broadcast TV were copyright infringements of the sort that Congress treated as cable retransmissions. Subsequently the Copyright Office refused to register Aereo as a cable company.


Coyle v. University of Kentucky (6th Cir. 2014)

Sovereign immunity protects state agencies from copyright liability. Every court to have looked at this question has found that state agencies have sovereign immunity in copyright cases, notwithstanding the CRCA (Copyright Remedy Clarification Act).





Pending Cases to Watch

Diversey v. Schmidly

In a case involving an odd dissertation problem, the 10th Circuit made a statute of limitations holding that treats library circulation as distribution for the purposes of statute of limitation claims.


Capitol Records v. Vimeo

Pre-1972 sound recordings are subject to various state copyright laws but not federal copyright law. Are they then subject to US Copyright Act notice and takedown provisions? Two prior cases, MP3tunes.com and Grooveshark have conflicting holdings on this question. 

Briefing for the appeal is happening this summer and fall.


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HathiTrust Wins on Appeal

Scholarly Communication Advisory

Thursday, June 12, 2014

link to 2d Circuit opinion by J. Parker

I imagine you’ve read some of the many excellent comments, analyses, and news reports about the Authors Guild v. HathiTrust case.  I thought I’d summarize briefly for you if you’ve missed some of it, and also try to clear up one confusion that I’ve seen several times.  If you want the “brief” highlights, just read below through the first paragraph of the “Section 108 replacement copies” section.  Below that I have various thoughts about the case and what it means, and additional links to commentary. 

Briefly, the Second Circuit yesterday [Tuesday June 10] handed HathiTrust a very significant victory.  The Authors Guild can now petition for a rehearing or petition for cert. to the Supreme Court, and while the Authors Guild has proven somewhat unpredictable, I feel fairly confident in saying that there is no reason for either the Second Circuit or the Supreme Court to review yesterday’s decision.

The lower court had in October 2012 made five major holdings – two procedural, and three substantive, and all five had benefited HathiTrust.  The Second Circuit strongly affirmed four of five of them, and on the fifth, vacated the earlier holding, but not because it was in error but because they thought the plaintiffs would lose on other, more preliminary, grounds.

Associational standing. One, the lower court had held that the Authors Guild and two of the other associational plaintiffs lacked statutory standing to sue.  The Second Circuit affirmed that holding.

“Orphan Works” project not ripe.  Two, the lower court had held that the “orphan works” program wasn’t “ripe”, since HathiTrust had shut it down.  The Second Circuit affirmed that holding.

Searching is fair. Three, the lower court had held that the search and index use of the HathiTrust catalog was a fair use.  The Second Circuit affirmed that holding, finding that a search index is a “quintessentially transformative use”, and that “this use is a fair use.”  That should put to rest arguments that the Second Circuit, the “copyright circuit”, does not recognize the “transformative purpose” approach that the 9th Circuit and 4th Circuits have applied in search engine cases.

Accessible copies are fair. Four, the lower court had held that the provision of copies to print-disabled was a fair use.  The Second Circuit affirmed that holding, although it used different reasoning than the lower court.  “[F]air use allows the Libraries to provide full digital access to copyrighted works to their print-disabled patrons.”  

The lower court had concluded the disability copies were transformative; the Second Circuit said no, the copies are not transformative because they are being used for the same purpose — reading by someone.  Again, the Second Circuit is solidifying that it has the same broad view of “purpose” that other circuits now share.  But this is also a useful opinion because the Second Circuit is expressly holding that NON-transformative uses can be fair use.  This is important for libraries and educational uses, where our purposes are not always transformative (provision of copies on electronic reserves, for instance).

Section 108 replacement copies may not be challengeable on other grounds. Five, the lower court had held that HathiTrust could provide Section 108-authorized “replacement copies” to member Libraries who owned the book, but whose copy was lost, missing, damaged, etc., and when a copy was not commercially available.  Those standards come from Section 108.  The lower court had held that this was a fair use, although not a “transformative use”.

The Second Circuit remanded to see whether or not any plaintiffs actually have standing to sue on this issue.

     I highlight this holding because I’ve seen it mischaracterized as “remanded to see if there is fair use”, or “overturning fair use”, etc.   None of that is correct.  There are three paragraphs discussing this holding — much less than any of the other holdings — because the Court basically said that, “[W]e do not believe plaintiffs have standing to bring this claim, and this concern does not present a live controversy for adjudication.”  If the case doesn’t settle the lower court will be seeking to see if any of the remaining plaintiffs might have standing.  In other words, will the named authors and/or the foreign collecting societies have works that are commercially unavailable, and subject to replacement copies?   If they do find standing, then the lower court couldstill find this to be a fair use.  In other words, that holding was vacated, but only because the Second Circuit thought the claim was fail on more preliminary grounds (standing).

  Frankly, I anticipate that this case will likely settle, because the Authors Guild was primarily bankrolling it, and they are now excluded as an associational plaintiff.  In that case, there will be a lower court holding that Section 108 copies are fair use, which was overturned on other grounds.  I don’t view that particularly negatively.  Especially because Section 108 copies are already so circumscribed (“commercial unavailability”), it’s hard to imagine that this will pose a problem for anyone.

More general notes about copyright

Here’s my general thinking about this case and its broader implications.

First, it’s out of the same court that will be looking at Authors Guild v. Google later this year.  There are some meaningful distinctions — Google is commercial, and provides snippets for viewing.  On reflection, I’m still pretty confident about Google’s fair use claims here.  The court held that a search index is a “quintessentially transformative use”, and that’s precedential for the Google case. Transformative uses mean that Google’s commercial status is much less important than it would be for a nontransformative use.  The snippets will be looked at as to whether its a “reasonable” quantity in light of the purpose, and that will be an important question in the Second Circuit, but I think there’s a very good chance that the snippets will be “reasonable”.  

Second, the Second Circuit is modifying its fair use analysis in a few ways, all of which are ultimately helpful to libraries. 

  • The first factor: “Transformativeness” now clearly includes search engine indexing.  Earlier cases certainly supported this strong case, and so did strong cases in other Circuits (AV v. iParadigm in the 4th Circuit; Perfect 10 and Amazon.com in the 9th Circuit).  But now the Second Circuit is on record as saying indexing is “quintessentially transformative”.  Given the strong value placed in the Second Circuit and all other Circuits on transformative uses, this doesn’t get any better.
  • The first factor is not just about “transformativeness”, and libraries and educational institutions rely on the “nonprofit educational” purpose.  The Court strongly endorsed that the first factor is not just about transformativeness, focusing on the purpose of providing accessible copies for print-disabled users.  
  • The second and third factors, nature of the work and quantity taken, did not offer any big new revelations, but both helpfully solidified that with these sorts of uses, taking the entire work and taking fictional/creative works are okay. 
  • The fourth factor, “effect of the use on the market”, was narrowed in a way that I think will be quite helpful for libraries.  The one piece of language that I did not like in this case was the Court’s citation to Harper & Row’s description of this factor as the most important of the four factors.  However, the Court took a very narrow reading on what that means, finding that this factor counts only harms that result from the secondary usesubstituting for an original use.  “A fair use must not excessively damage the market for the original by providing the public with a substitute for that original work.”  This approach really takes a big hit at the principle that American Geophysical Union is often cited for, which is that lost licensing revenue counts — because under the HathiTrust approach, lost licensing revenue for a transformative use will certainly not count.  While the Second Circuit has been moving in this direction for a while (in my view), this is a strong and clear statement of that view, and will be very helpful to library and educational users.  The unfortunate citation to Harper & Row does not, I think, hurt us much, except insofar as it might give some indication of how the Court is thinking for future cases (like Google Books).  But I tend to think it was just more of a quick throw-away citation than any considered reliance, because that point is made just once, and almost in passing. 

Three, the Court made short work of two of the Authors Guild’s arguments: 

  • The Court dismissed the Authors Guild’s claimed concerns about “security” pointing out that the system was very secure. 
  • The Court dismissed the Authors Guild’s incredibly silly argument that Section 108 obviated Section 107, by dropping a footnote and noting that, on its face, Section 108 includes a savings clause. 

All in all, I’m very pleased.  This was a big win, in a big court, and it will having lasting effects on the law of search engines, transformative uses, non-transformative uses, disability rights, and the “market” factor. A great day for libraries. 

I’m including below some additional media links, if you just can’t get enough of the cheering from the library/educational quarter. 

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