Digital Course Packs Case - University Asserts Soverign Immunity, Fair Use, Discovery Process Begins

I’ve been following the Cambridge University Press et al v. Patton et al (Patton et al are being sued in their official capacity representing the University of Georgia) – a case where publishers challenge the use of digital versions of publications provided to students through various digital management systems – electronic course reserves, Web Ct, and so on. The publishers initiated their lawsuit with a complaint; the university’s filed their formal Answer, and the parties are now initiating the “discovery” process – discovery is a term of art use to describe the formal process of gathering evidence.

All of the legal proceedings are being collecting here:

http://news.justia.com/cases/featured/georgia/gandce/1:2008cv01425/150651/

I summarized the original complaint and the publisher’s claims here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1122585

http://martinecourantrife.blogspot.com/2008_04_01_archive.html

And I’ve mentioned the Answer, or the university’s position here:

http://martinecourantrife.blogspot.com/2008/07/in-lawsuit-university-asserts-that.html

http://martinecourantrife.blogspot.com/2008_06_01_archive.html

I’ve had time to more closely read the university’s Answer and so I provide an update.

On April 15, 2008, publishers, Cambridge University Press, Oxford University Press, and Sage Publications, filed a complaint in the US District Court for the Northern District of Georgia, Atlanta Division, against various representatives of Georgia State University regarding what the publishers allege to be “pervasive, flagrant, and ongoing” (p.3) infringement of their copyrights.

While many of the “infringing” examples cited by Cambridge et al. include the digital distribution of only one chapter of a work, the publishers argue that the amount copied “vastly exceeds . . . fair use in an educational setting” (p.3). It appears from the complaint that most of the information supporting the plaintiffs’ allegations was gleaned from accessing GSU’s online library course reserves. According to plaintiffs, these reserves, including links to instructors’ syllabi as well as digital copies of copyrighted course readings, were freely available not just to students, but to the public in general, at least until the university responded to a request from plaintiffs to address the issue. The university subsequently required students use a password to access the materials.

The complaint lists the various practices by GSU and its faculty that the publishers object to. Such practices include:

1. Creating anthologies by mixing together various readings under the professor’s directions: “practice of anthologizing” (p. 18).

2. Constructing classes such that students never “set foot in a bookstore or expend . . . a single cent” (p. 5) in order to participate in a course.

3. Using copyrighted materials without proper permission or payment of fees (the copyright clearance center is suggested as a viable alternative).

4. Construction of “digital course packs” used semester after semester.

5. GSU’s copyright guidelines, which they argue “plainly exceed legal boundaries” (p. 17)

In its response (“Answer”), the university admits that various chapters were provided by sundry faculty to students in digital format. (The university provides 18 defenses total, all of which I will not recite here):

“GSU admits that students in the Spring 2007 term of Professor Belcher’s course “Qualitative Research” ( AL8961) were given access to five digital excerpts from the second edition of the Handbook of Qualitative Research, edited by Norman Denzin and Yvonna S. Lincoln and published by Plaintiff SAGE Publications” (p. 11).

The Answer goes on to list in great detail exactly what was and was not available to students in digital format. However, the university denies that it was creating digital anthologies, as alleged by the publishers.

With respect to having digital copyrighted materials available in a public space for all to access with no password, the university states: “GSU admits that a software mistake was discovered in May/June 2007 and that this software mistake enabled views without a password to access Course Researches Pages through clicking one of more of the other columns on a Course Research Index page . . . GSU contacted the software vendor to repair the mistake so that only students who are given a specific password by the instructor can access the pages” (p. 16).

Throughout the Answer, the university asserts that it relies on fair use for its use of digital materials.

SOVEREIGN IMMUNITY

An interesting aspect of the lawsuit that has arisen is the status of the legal entity being sued. While I state that the university has filed the Answer, it has done so through the attorney general of the State of Georgia. In other words, by suing GSU the publishers have in fact sued the state. As GSU (through the attorney general) states in its Answer:

"GSU denies that Georgia State university is a not-for profit corporation. By way of clarification, Georgia State university is not an incorporated entity. Georgia State University is a unit of the Regents of the University System of Georgia, an agency of the State of Georgia created by O.C.G.A. Section 20-3-20" (p. 8).

Due to GSU’s legal entity status as “The State,” in its Answer it thus asserts sovereign immunity under the 11^th amendment of our Constitution:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

http://caselaw.lp.findlaw.com/data/constitution/amendment11/

I will just say here that the concept of sovereign immunity is extremely complex and has been interpreted variously and sometimes inconsistently. It will be interesting to see how the court deals with this, in the event the case is not settled before the production of a judicial opinion. I like to think about sovereign immunity because it plays with our ideas of authorship. I don’t usually see myself, as an employee of a public teaching institution, as “The State,” with respect to my writings in the scope of employment. There are some really interesting intersections between authorship concepts, work-for-hire, and our status as “The State,” (as opposed to “the individual”) that have been largely unexplored in rhet/comp.

Other defenses that GSU raises are the statute of limitations and laches. Both concepts deal with time – that is, both argue that too much time has expired before the injured party took legal action, and provide a remedy that bars either fully or partially, the lawsuit. Laches is an equitable doctrine, and the statute of limitation (usually three years for copyright law), is a legal doctrine. Chaim Perelman, writing on Aristotle, points out that Aristotle categorized equity and law, saying something along the lines that equity is the crutch of the law – i.e. it comes into play with the “law is lame.”

William Patry has a nice summary of the difference between the statute of limitations and laches.

Laches and the Statute of Limitations

http://williampatry.blogspot.com/2007/01/laches-and-statute-of-limitations.html

Both the publisher and the university are filing their discovery documents as well as trying to narrow the issues. (In rhetoric we might call upon stasis theory with respect to this narrowing of the issues). The legal documents also point out that settlement conferences have been or will be scheduled (usually a requirement nowadays).

I will continue following the suit.

Educational Use of "Flat Stanley" Threatened by Intellectual Property Claims

In what's becoming an all too common assertion of IP rights by estate holders, a teacher who's been conducting educational, funded use of Flat Stanley may have to end his efforts, which have reached across the globe.

http://www.flatstanleyproject.com/

From the George Lucas Educational Foundation Article:

"Today, the project has become a veritable global phenomenon, and because of it, thousands of children from more than forty countries have exchanged pictures, stories, and goodwill, turning a half-inch-thin storybook character into a cultural icon. Flat Stanley look-alikes have even been photographed with Clint Eastwood on Oscar night, soared aboard a space shuttle, and visited heads of state around the globe. But now, as the project enters its thirteenth year, Hubert might be forced to pull the plug on the popular project.

Citing legal challenges from the estate of Jeff Brown, the late author of the original Flat Stanley book, Hubert posted a message on the project home page that reads, 'Sadly, the Flat Stanley Project may be forced to end.' Letters of support illustrating the project's -- and the character's -- far reach have since poured in."

http://www.edutopia.org/flat-stanley-pen-pals

Is There a Chilling of Digital Communication?: The Dissertation

I've finished a complete copy of my dissertation and submitted it to the committee.

http://sites.google.com/site/martinecourantrife/

An abstract for the 300+ page document appears below.

ABSTRACT

IS THERE A CHILLING OF DIGITAL COMMUNICATION? EXPLORING HOW KNOWLEDGE AND UNDERSTANDING OF FAIR USE INFLUENCE WEB COMPOSING

The study explores copyright law’s mediational influence on digital composing using a sequential transformative mixed methods research design. The author conducted a digital survey and discourse-based interviews with digital writers regarding how they factored in copyright law and fair use in their composing decisions. The study is framed with activity theory, rhetoric theory, and also draws upon Foucault’s notion of the author-function. Three main areas of inquiry in the study include examining the status of knowledge and understanding of copyright law in the field of technical and professional writing (TPW) as well as in professional writers. A second research goal is to investigate the creative thinking processes, or rhetorical invention, of writers in these programs composing webtexts in light of copyright law. A third research goal is to examine what happens to mediational means as writers leverage them in digital contexts.

The study’s six major findings are that 1) web spaces are sites of cultural collision, or commonplaces, where students occupy sometimes conflicting positions such that the very notion of “studentness” is inverted. Web spaces as commonplace challenge existing concepts such as “author” and “originality”; 2) The intertextuality of web-space-writing provides support for Foucault’s theory that the single author is an ideological production representing the opposite of its historical function, i.e. the “author-function,” in the larger culture. “When a historically given function is represented in a figure that inverts it, one has an ideological production” (Foucault, 1984, p. 119). No support was found for a human culture existing without an “author-function,” whether it is a workplace culture or even a more community-knowledge-focused culture as exists in India. Yet, “the author” switches in and out of a subject position in relationship to human and non-human actors; 3) For this group of writers, digital speech was not chilled. Copyright law as a system of invention organized by rhetoric, produces knowledge; 4) Rhetorical topics congeal as a heuristic mediating the digital composing process of writers. This study provides a small and incomplete snapshot of this heuristic structure; 5) When we consider the hierarchical and embedded nature of rhetorical topics that mediate digital composing choices, for this group of writers, ethics trumped the law; 6) While the study supports the idea that laws have agency, as knowledge and understanding increase, that agency is increasingly diminished by the human actor. The agency of the law is connected to where the law ends up on the AT triangle.

The author ends the study by calling for more research in the area of copyright law’s agency in the composing process, suggesting that drawing upon Actor Network Theory and its notion of radical symmetry might prove helpful for future studies.

Mom Fights Universal Music Publishing Group Over Video of Her Toddler Learning to Walk

Stephanie Lenz, a Pennsylvania mom, has been asked by Universal to remove a video she posted to YouTube of her toddler learning to walk. In the background of the video, Prince's song "Let's Go Crazy" is playing. The take down notice alleges that what appears to me to be an ephemeral use of the song, infringes on the song's copyrights. Lenz has filed suit asking for declaratory relief that her use is not an infringement.

Backed by the EFF (Electonic Frontier Foundation), Lenz is suing over Universal's take-down letter. There's been quite a bit of concern in the legal community about baseless take-down notices used to unjustifiably force people to take material down from the web.

The case is being covered by EFF: http://www.eff.org/cases/lenz-v-universal

It was also written up in Silicon Valley.com: http://www.siliconvalley.com/news/ci_9932068

Here's the video:

Code of Best Practices in Fair Use for Online Video released by Center for Social Media

The Center for Social Media at American University has released a set of best practices for fair use when creating online video – another in its series of best practices in fair use guidelines. The new video guidelines are packaged up in a handy PDF file, under 20 pages. The six best practices are prefaced with a short introduction outlining basic fair use considerations, and are followed by a short list of common fair use myths. This is a very handy tool for teaching, especially for those who teach new media or multimedia. It would certainly be appropriate for first year writing, graduate level courses, or even high school.

http://www.centerforsocialmedia.org/blogs/future_of_public_media/announcing_the_release_of_the_code_of_best_practices_in_fair_use_for_online/

The six best practices in fair use when creating online videos include practices that arise out of the following inventional techniques often used during the remix process:

1. Commenting on or critiquing of copyrighted material.
2. Using copyrighted materials for illustration or example.
3. Capturing copyrighted material incidentally or accidentally.
4. Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon.
5. Copying, reposting, and recirculation a work or part of a work for purposes of launching a discussion.
6. Quoting in order to recombine elements to make a new work that depends for its meaning on often unlikely relationships between the elements.

Some key statements in the introduction which I appreciate as illuminative of the sometimes untapped power of fair use include that “where it applies, fair use is a right, not a mere privilege” (p. 3), and emphasis that the uncertainty of fair use determinations provide flexibility, a good thing. In the study I completed for my dissertation (http://sites.google.com/site/martinecourantrife/), I found that the professional writers I studied were unclear about the distinction between fair use and licensed use. The Code of Best Practices emphasizes this important distinction, noting that fair use is use that takes place without permission. It’s unauthorized use. Licensed use, on the other hand, takes place with some form of permission. The Code applies to unauthorized uses.

The Code was put together by a panel of experts who work in the area of copyright. Many on the panel are law professors or legal experts. This is a Code that does not do what many “best practice” guides do – that is, restrict our fair use rights. Instead, this Code presents a robust set of guidelines based on existing case law.

Writing teachers will appreciate as well the focus on attribution, although copyright law or fair use does not expressly require it. The authors assert that attribution will provide evidence of good faith in the event a use is challenged. I have written a chapter on plagiarism that’s in process – co-authored with Danielle Nicole DeVoss. In that chapter though, we argue that sometimes attribution is unnecessary, especially when it’s obvious where materials came from. For example, a short time ago a parody of The Shining circulated widely on the web. I don’t believe the author of the parody credited Stephen King, nor the producer or directors nor the various actors. But because The Shining has become a kind of “common knowledge” in our culture, I do not think attribution is necessary. The point we made in the chapter is that if the viewer doesn’t know what The Shining is, the parody makes no sense, since parody relies on common knowledge of something pre-existing.

Another example of where I think attribution is not necessary because of the common knowledge argument, is when something, even an image, is available in multiple locations on the web. In her blog, Clancy Ratliff writes a bit about defining common knowledge – noting that some state that if something appears in 3 different texts, then it’s common knowledge and a citation is not needed http://culturecat.net/trying-stay-ahead-demand. In my dissertation I have quite an extended argument on this topic of common knowledge – I basically don’t have a rule like Clancy’s, although I think such rules are helpful sometimes for teaching. But I do note that common knowledge is time stamped, and culture stamped. My example for today though is that I recall from an advanced multimedia production class I took with Prof. Ellen Cushman several years ago, an image of Sequoya. If you do a google image search for “Sequoya” you will immediately get a google page showing 5 or 6 of the same image of Sequoya in several locations, just on the first page of your search. Let’s say you were going to use this image. Which citation would you pick? All of them? Some of them? The most credible? The least credible? My argument is that although you could provide a citation, as long as in the context it’s clear you yourself did not create the image, a citation or attribution is not needed, as this image of Sequoya is common knowledge.

As stated, writing teachers will appreciate the Code’s emphasis on good faith attribution. I tend to think that in many remixed texts, attribution is not necessary, and simply lingers as a vestige of our former modes of traditional writing. The other downside to attributing your sources in fair use, is that it might draw attention to your use in the event a copyright holder is policing the web for any use at all. Yet, Foucault predicted that someday we wouldn’t care who wrote what. Perhaps that day is nearing.

Let's Be Clear: You Do Not "Own" Your Software

MDY Industries, LLC v. Blizzard Entertainment, US District Court for the District of Arizona, No. CV-06-2555-PHX-DGC, July 14, 2008. Signed by Judge David G. Campbell.

The facts of the case are that Blizzard, the creator and operator of World of War Craft (WoW), sued Michael Donnelly (MDY) for a number of things, including copyright infringement due to MDY’s creation and sale of a software program known as WowGlider (Glider). Glider basically plays WoW for the user while the user is away and can thus raise the user’s game playing level more quickly than could otherwise be. Game levels go from 1 to 70. WoW, at the time of the court order, had 10,000,000 users and generated more than $1.5 billion in annual revenue. Glider had sold 100,000 copies to date.

On the copyright infringement claims, the court held in favor of Blizzard stating that when the WoW program is copied onto users’ RAM (Random Access Memory) in order to activate Glider, this constitutes a copy and is thus copyright infringing. Key were the Terms of Use (TOU) and End User License Agreement (EULA). Even though section 117 of US copyright law says it is acceptable for a user to make a copy of a program she owns in order for the program to function, the court found that the TOU/EULA language over-rode section 117. In order to come to this conclusion the court had to decide that the purchaser of the WoW program is not in fact an “owner” but is instead a mere “licensee” subject to the terms set forth by WoW in its TOU and EULA.

The court found in favor of MDY on Blizzard’s DMCA claim. The DMCA prohibits the sale of technologies that circumvent others’ anti-circumvention controls. WoW has an element called “wardens” that patrol for “bots” or robots. Glider is a bot but was developed in order to evade detection by the wardens. The court said that because the code needed in order to accomplish this circumvention was plainly available to the user, Glider did not violate the DMCA.

On several other counts the court did not make a determination and so the case will continue and is set for trial. It can be followed on Justia.com.

In finding copyright infringement, the court relied on the Grokster case, written about previously by Jim Porter and me (http://www.ncte.org/cccc/gov/committees/ip/125704.htm), and Grokster’s definition of contributory copyright: “intentionally inducing or encouraging direct infringement.” The court said that because Glider required the copying of WoW onto the users’ RAM, Glider’s owner induced others to infringe on WoW’s copyrights.

Another issue that determined the court’s decision was whether the EULA and TOU were limitations on the scope of license or separate contractual covenants. If this matter had instead been determined to be one of breach of contract rather than copyright infringement, the damages would have likely been far less (although damages have not been determined yet). Contract violations are generally limited to actual damages, but copyright violations include actual damages plus other damages as well such as the infringer’s profits, and including up to $150,000 per violation statutory damages. The court decided that purchasers of the software were not owners in order to avoid the application of section 117 which allows copying of a software program when it is necessary to operate the program. Instead, the court said: “The EULA thus makes clear that Blizzard is granting to its users a license, not ownership, of the copies of the game client software” (p. 14).

Here, I think, the court while following the precedent of existing case law, takes a strange logical turn. If we think about ownership in the way the court has constructed it, we are never owners of any copyrighted material we purchase. For example, I am not the “owner” of the book I just purchased from amazon.com because I cannot do anything I want with the book. I cannot make mass copies of it and sell those for profit. So, I am a “licensee” of sorts based on this court’s definition of “ownership.” It’s clear that the logic of the court’s definition here doesn’t play out well if applied to other situations, and the only reason for such a definition is to circumvent the application of section 117 which was not written in anticipation of such a move as Glider makes with respect to requiring the copying of another’s software. If section 117 had anticipated this set of facts, it would have said something like, “You can make copies of a computer program you own if it’s necessary for you to do so in order for the computer program to work, unless you are making the computer program work for something bad, or to cheat at a game.”

I think the implications of this case are something to consider for those of us concerned with software and other kinds of documentation. The court heavily relied on the EULA and TOU and how those two texts interacted with each other. It appears from this case that writers of EULAs and TOUs can create any terms they want for end users, and if written clearly and carefully, really try to control how users use end products.

From the user’s perspective, this case really limits users’ rights on the software they purchase. Those EULA and TOUs in their 6 point font should be read closely, especially if one is a software developer creating software that scaffolds on existing software. I can imagine the damages in this case are going to be astronomical for the creator of Glider.

I can also imagine taking the reasoning of this case to other levels. What if I write a book and then list all the ways the user is allowed to use that book in the last chapter. I could say – you can only use my book if you teach from a feminist perspective and are anti-racist; you cannot use my book alongside books by “name some authors you don’t care for.” You may only use my book to stop war and not to promote war; you may not use my book to even out the legs on your table, or in order to start fires, and so on. I can’t imagine why book authors couldn’t start writing detailed licenses on how others can use their texts in order to avoid unwanted negative consequences. If the software developers can do this I don’t see why the rest of us can’t. Hum . . .

Digital Sliderule for Determining Copyright/Public Domain Context

http://librarycopyright.net/digitalslider/

This digital slide is a neat tool, licensed under a creative commons license, for determining whether or not something is copyrighted and thus in need of either a fair use determination or the seeking of permissions. (If in the public domain you can freely use).

The slide rule was discussed in a recent arstechnica article:
http://arstechnica.com/news.ars/post/20080718-copyright-so-complex-heres-a-slide-rule-to-decode-it.html

Scribd.com: "World's Largest Document-Sharing Community"

From a Boston.com article:

"Other downloads come from file-hosting sites that store complete copies of books. One such site, Scribd.com, is based in San Francisco. Backed by $3.7 million in funding from venture capital firm Redpoint Ventures, Scribd calls itself 'the world's largest document-sharing community,' with 17 million visitors a month. Users sign up for free accounts, which allow them to post documents on Scribd for other users to read or download. Businesses and educators use Scribd to share legitimate documents, but some account holders post copyrighted materials, including books.

Jason Bentley, Scribd's director of community development and copyright agent, said that his site allows only legal file sharing and that any files posted without permission of the copyright holder are taken down. 'We will remove the item or items within hours,' Bentley said in an interview. 'If you have more than two works taken down for copyright infringement, your account will be closed.' A federal law shields websites from copyright lawsuits if they quickly comply with removal demands from the copyright holders. Earlier this month, Bentley told the Chronicle of Higher Education that Scribd gets at least one take-down request a day, including frequent ones from Harvard University Press and the Massachusetts Institute of Technology Press."

http://www.boston.com/business/articles/2008/07/18/textbooks_free_and_illegal_online/?page=2

Students Trade "Pirated" Digital Textbooks on Regular Basis

Some of us might not be surprised that students have developed an under-the-radar trading system for textbooks, which we all know are usually outrageously priced.

http://www.boston.com/business/articles/2008/07/18/textbooks_free_and_illegal_online/

The phenomena, posted in an article on Boston.com, quotes a publishing manager from Farmington Hills, Michigan who asserts that 200-300 of his company's titles are illegally published per month.

The article goes on to state: "Ed McCoyd, director of digital policy at the Association of American Publishers in New York, said a survey in May located about 1,100 titles available illegally online, including novels and books on current events."

My perspective on this is that we've been saying for years the economic model of the traditional publication industry must change. If the publication industry won't change on their own initiative, users will effectuate that change for them. It also makes me think of the recent study I completed that was the foundation for my PhD dissertation. In that study I found that US copyright law did not have the agency many presuppose that it has at least among the digital writers I studied (who were also students). These practices by students in some sense achieve a certain kind of fairness or justice, as the high price of textbooks tries to compensate for digital piracy by others (as well as the basic affordances of digital technology which often negates the need for textbooks in the first place). If prices are going to set boundaries for who can and cannot partake of higher education in the US, "students" are going to take matters into their own hands, apparently. I cannot blame them. If a reasonable solution isn't offered by those with proprietary interests, users will force a solution through their own behaviours. The law isn't what it is, it's what people enact it to be.

The EU announces plans to extend copyright from 50 to 95 years

According to the Timesonline, in what's called the Beatle's extension, the EU is seriously considering extending copyright from 50 to 95 years. (In the US it's the life of the author plus 70 years). Pressure has been exerted, apparently, from some of the "rock dinosaurs" of the 1960's including "Sir Paul McCartney."

The most interesting aspect of this article is the comments. Some of the commenters have good points -- I like the person who wrote that in 100 years we will laugh at copyright, which by then, creators will have copyright protection for 3 years and that's it. Hum, I wonder if it could happen? Foucault seemed to think our entire perception of authorship would change eventually -- perhaps the 3 year copyright imagined might be a step in the right direction.

The article is here:

http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/music/article4347643.ece

Dutch chipmaker sues to silence security researchers

From C/net news blog: "Dutch chipmaker NXP Semiconductors has sued a university in The Netherlands to block publication of research that details security flaws in NXP's Mifare Classic wireless smart cards, which are used in transit and building entry systems around the world."

The article features a youtube video that illustrates how the system is hacked. It includes an illustration of wireless "sniffing" which I never heard of. Kind of scary. It's also scary that a commercial enterprise is trying to block the publication of academic research.

http://news.cnet.com/8301-10784_3-9985886-7.html?hhTest=1

In Lawsuit, University Asserts That Downloading Copyrighted Texts Is Fair Use

Andrea Foster has written a short piece summarizing the university's position.
http://chronicle.com/free/2008/06/3583n.htm

Her piece appears in the Chronicle of Higher Education. Basically it sounds like the university is arguing both fair use and in the alternative, sovereign immunity. I haven't read the answer yet, but will do so soon.

Here is a quote from the first paragraph of Foster's article:

"In a closely watched copyright-infringement lawsuit, Georgia State University fired back this week at its accusers, three academic publishers that say the institution invites students to illegally download and print readings from thousands of works. The university asserts that its online distribution of course material is permitted under copyright law's fair-use exemption."