New research techniques like data mining have highlighted the shortcomings in “free” (as in beer) licensing of academic research, and the benefits of “libre” licensing that permits true scholarly engagement with data and scholarship. These challenges apply equally in the education sphere, where teachers often need to manipulate resources and not simply distribute them. We will survey what is sometimes called the “open movement” in academia, which incorporates open access, open education, and open data. How are researchers and educators grappling with these challenges, and what can they learn from the free software movement?by
November 26, 2012
Memo from the Scholarly Communication Office
Nov. 26, 2012 – Case dismissed with prejudice.
The court finally issued its order dismissing the case in the AIME v. UCLA case. (The second amended complaint, in case you’re counting.) In short, it was another big victory for libraries. The court affirmed all its earlier reasoning, and deepened its reasoning in a few key areas.
Here’s a quick summary — more discussion will be out on all the usual places in the near future, I’m sure.
Sovereign & Qualified Immunity Defenses
- – All claims against Regents and claims seeking damages against individual defendants in their official capacity were dismissed because of sovereign immunity.
- – The officials were also protected by sovereign immunity for their supervisory activities.
- – The officials also had qualified immunity because the actions taken were not clearly copyright infringement; where there is at least some reasonable ambiguity around fair use, one could reasonably believe the action is fair use, and not copyright infringement. “The Court finds that a reasonable person would not have known that the alleged conduct violated any clearly established rights pursuant to copyright law because it is ambiguous whether the use was fair use under copyright law.” More on that below.
- – The earlier holding that AIME does not have associational standing still applies.
interpreting the License
- – The earlier holdings on interpreting the license language still apply — the court had said the activity looked like a “performance” not a “distribution”. However, the court also examined the “distribution” claim, and made a couple of key holdings: (1) The streamed copy on the end-user’s machine is not “fixed” and does not therefore constitute a “distribution”. (2) The licensing agreement language prohibiting broadcast or transmission over an “open or Internet system” did not clearly preclude the closed intranet system. Conflict between the marketing brochure and the licensing language created ambiguity which could be exploited by the library.
- – Very nice interpretation of the DMCA anti-circumvention: Because UCLA had lawful access to the content of the DVD, their circumvention was okay. Oddly, the Court didn’t look to the DMCA anti-circumvention exemptions.
- – Intermediate copying (to put the files on the streaming server) was “incidental fair use”.
- – The streaming activities themselves were also analyzed for fair use, in the context of the officials’ qualified immunity. Thus, the Court did not fully assess whether the streaming itself were definitively fair use; only whether they were plausibly fair use. The Court found only that there was at least a strong argument about fair use, and so the officials were not liable for copyright infringement. It is clear, however, that this Court felt the activities were fair use.
- The court found that the purpose and nature favored fair use — no discussion at all.
- The second factor — the type of work — was neutral because, although these were creative works, they were used in an “informational and educational context”.
- The third factor was “slightly” against a finding of fair use because the entire work was streamed: The “time shifting” argument was “compelling” and tipped this toward only weighing “slightly” against fair use.
- The fourth factor weighed in FAVOR of fair use because someone watching the streaming DVD in a classroom has no effect on their likelihood of buying.
Overall, this is a very helpful analysis from the perspective of libraries.
- – The various state common law claims were preempted by federal copyright claims.
The full opinion can be read at http://www.scribd.com/doc/114021241/UCLA-dismissedWithPrej-pdf or at http://library.umass.edu/assets/caseslaw/AIME-v-UCLA-CDCal-20121120.pdf .
(The Oct. 3, 2011 decision dismissing without prejudice is also available at the UMass Library website at http://library.umass.edu/assets/caseslaw/AIME-v-UCLA-CDCal-20111003.pdf.)share: by