Obama Administration Considers Joining Publishers In Fight To Stamp Out Fair Use At Universities

from the pure-insanity dept

Okay, this is really quite unfortunate. In 2011, we wrote about an important copyright case involving three publishers suing Georgia State University for daring to have “e-reserves” that allow professors to make certain works available to students electronically via the university library. Nancy Sims, copyright librarian for the University of Minnesota, wrote a guest post summarizing the case for us as follows:

The publisher-plaintiffs are suing over the way instructors (and possibly others on campus) share course readings like academic articles and excerpts from academic books. They are objecting both to readings posted on course websites (i.e., uploaded by instructors and accessible only to students registered for a course) and readings shared via “e-reserves” (i.e., shared online through university libraries, usually also with access restricted to students registered for the course). The publishers claim that sharing copies of readings with students is not usually a fair use, that faculty can’t really be trusted to make their own calls about what is or is not fair use, and that permissions fees should be paid for most of these uses.

Thankfully, last year, we wrote about how the district court issued an astounding 350-page ruling that basically said that most of these electronic reserves were clearly fair use. We had some issues with the way the judge went about the analysis — often coming up with random and arbitrary standards for the amount of a work that could be used while remaining fair use, but, on the whole, it was good to see the judge support fair use relatively strongly (and, in some cases, to not even get to a fair use analysis by saying that the use was allowed as “de minimis” copying).

Of course, no matter what happened, the other side was going to appeal. We’re getting closer to the appeals court hearing the case, but something interesting popped up last week. In a somewhat surprising move, the Justice Department jumped in and asked the court for some more time for the filing of amicus briefs from concerned third parties, because it was considering weighing in on the case. The Justice Department? Why should it be interested in a dispute concerning whether or not public university libraries are engaged in fair use by making works available to students?

In digging into this, we’ve heard from a few sources that it’s actually the US Copyright Office that has asked the DOJ to weigh in on the side of the publishers and against the interests of public univerisities and students. Yes, the same Copyright Office that just promoted a former RIAA VP to second in command. I’m sure that’s just a coincidence.

Let’s be clear: it is flat out ridiculous that the Obama Administration may be supporting the publishers here. Two out of the three publishers are foreign publishing giants, and it would be supporting them against a public university library tasked with helping to educate students. The entire purpose of copyright law is supposed to be to promote the progress of learning. The copyright clause in the Constitution used “science” but back in that era “learning” and “science” were effectively synonymous. The very first Copyright Act in the US was actually titled “An Act for the Encouragement of Learning.” Current copyright law is explicit that fair use covers this sort of situation:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

And yet… these publishers, along with the US Copyright Office and (perhaps) the DOJ, would like to ignore all of this, and reject fair use in such public learning centers? It is ridiculous. Oh, and did we mention that the lawsuit by these publishers is really being funded by the Copyright Clearance Center (who, shockingly, would be in charge of collecting fees for such uses…) and the American Publishers’ Association? If the Obama Administration wanted to appear any more in the pocket of “Big Copyright” and against the public interest when it comes to learning and education, I’m not sure of any better position to take.

This is just a year after the SOPA fight, and it appears that the Copyright Office, led by Maria Pallante, who was a massive supporter of SOPA, has not learned the lesson of that debacle. It would be a travesty if the Justice Department listened to such an out of touch position and argued that the court should reject fair use in such scenarios.

It would be a complete embarrassment for an Obama administration that has argued that improving our education system is a key policy issue to turn its back on education by having its Justice Department argue against a public university library and students, and in favor of a blatantly self-interested copyright collection agency, funding some foreign publishers, trying to shake down students for extra money to learn. Just the fact that the US Copyright Office is supporting this and asking the Justice Department to make this move is a sign of how screwed up the Copyright Office is today. And it remains unclear why this is even an issue that concerns the Justice Department at all. Since when is access of students at a public university to educational materials an issue that should be of any interest to the Justice Department?

For what it’s worth, we’ve heard that the people in the Justice Department who are considering its position are talking to various government agencies and officials over the next few days to determine what its final position should be. We would hope that the Justice Department, and the wider Obama administration (including the Copyright Office), take into account what happened last year when SOPA was put forth and the government sought to use copyright law to limit the public’s rights. It would seem unwise to then take a position that might stir up significant interest, specifically when it involves something as ridiculous as supporting foreign publishers over public university students seeking reasonable fair use access to educational materials, as is clearly supported by the Copyright Act.

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Comments on “Obama Administration Considers Joining Publishers In Fight To Stamp Out Fair Use At Universities”

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bob (profile) says:

Re: Re:

Uh, the schools are the ones that keep saying “Pay Us More!” A $200 sounds expensive unless you compare it to the price of a course at a university. That’s often $3000-5000 and it often doesn’t cover half of the book.

If you look who is really going after the students’ pockets, it’s the schools themselves. Their tuition is up 3-5 times after accounting for inflation. Books are about the same after inflation.

Anonymous Coward says:

Re: Re: Re:

Well, and how are university libraries costs and book costs not a big part of the economic costs of education?

Books may be receding in this context, since 50 % has moved online, which is where the publishers are giving offers the universities cannot refuse.

Btw. weren’t you the Bob who was fired for having a chinese programmer make your work?

harbingerofdoom (profile) says:

Re: Re: Re: Re:

while its true that schools in fact are looking for more and more tuition, it is not a completely different issue. they are tied together and to try and separate them from eachother merely re-enforces the comment that jeff lead with.

you cannot simply ignore the fact that that what bob said is true, no more than you can just ignore the parts about WHY bobs simplistic statement, while being purposefully misleading, is still true.

Anonymous Coward says:

Re: Re: Re:2 Re:

While you are correct that the cost of books to the schools also affects the cost of tuition, I was under the impression that he was conflating this with the cost of textbooks to students. I could be wrong in my assessment of his comment though. Otherwise, I agree that his assessment is overly simplistic and purposely misleading.

Ninja (profile) says:

From Article I, section 8 (http://www.archives.gov/exhibits/charters/constitution_transcript.html)

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

How depriving students of knowledge fits in that definition again? Unless the US is planning to outsource the brilliant minds to China/India as they do with telemarketing this doesn’t make sense. At all.

Anonymous Coward says:

Re: Re:

Promotion, including self-promotion, occurs all the time these days. All you need is a Facebook account.

So yeah, you could put all your ideas and discoveries in Facebook or maybe Wikipedia, or something else online. As long as google can find it, or is available as an app, promotion is taken care of.

The problem is that promotion via computer or technological means doesnt get people paid. It’s an interesting dichotomy we live in. But these days, we’re sending all our R&D efforts overseas, so the only ones getting paid are the outsourced workers because it costs too much to fly Chinese or Indian workers to East Texas for a court hearing on what Google Search Words were used to find someone else’s crappy idea.

I’m all for getting paid, and hell, I think this rant should be on a T-Shirt. Looooooooooooooots of t-shirts, so send me a check before Masnick steals that too.

Sneeje (profile) says:

Re: Re: Re:

I can’t decide if you are willfully ignorant or you really don’t understand that phrase. “Promotion” means that in exchange for the government supporting your exclusive rights, you will do things that ultimately benefit the citizenship as a whole. You gain in the short term, everyone gains in the long term.

But folks like you seem to want it both ways. If you want to have an exclusive right to your content, you need to finance it privately, through your own income or through investors that agree to relinquish any rights to that content. You can’t expect to receive public funding from colleges/universities or the government and also retain exclusive use of your content for a century.

Anonymous Coward says:

Re: Re: Re: Re:

It goes WAY beyond just funding. You were correct in your first paragraph when you said “supporting your exclusive rights”. That means if you want the government to back you when you complain about someone copying your work “FOR THE LIMITED TIME” then you not only need to secure your own funding but never share it with anyone so it might as well have never even existed as far as the public is concerned.

Mark says:

Re: Re:

They’re not ‘depriving students of knowledge.’ They are simply asking to be compensated for providing something that everyone agrees has value. Are the dorms depriving students of shelter by charging? Is the cafeteria depriving students of nutrition by charging? Making textbooks and class materials is expensive, why shouldn’t they be paid?

Anonymous Coward says:

Re: Re: Re:

Copyright small amounts of text from a textbook is fair use. It’s been that way for a very long time in this country, it’s part of the contract of the legal system surrounding copyright.

Surely if we got rid of fair use, publishers would make a lot more money. So that’s good right? We should just get rid of fair use because “why shouldn’t get get paid”?

How about no. But this isn’t even about that. There is no explicit copyright violation being argued, no copyright they are saying Georgia is violation of.

They are suing over a tool, that potentially harms their business. It’s like dormitory suing a lock pick company for offering a tool that could potentially allow people to get in for free. How many meta-meta-violations of copyright can we stand for before this entire legal system becomes a farce?

Skeptical Cynic (profile) says:

University's are stupid

Why have the Colleges and Universities of this country not sought out and promoted more open methods of getting the text books they need for education?

I am sorry but I hate the restrictions that are imposed on students. I left a big Online College where I was working for a second Masters degree because they switched from requiring us to buy the text books with e-book access for each class to requiring us to pay the same amount of money for a e-book only version that had zero resell possibly.

Even worse I lost access to the books I did pay full price for because the DRM scheme involves logging in to your student account. So over $400 dollars for e-books that I can not ever resell (if I don’t want to read them again) and re-read if I want to reference again.

So back to my original Title. Universities and Colleges are either getting big kick backs to mot properly serve their students or they are stupid.

Josh in CharlotteNC (profile) says:

Re: University's are stupid

Why have the Colleges and Universities of this country not sought out and promoted more open methods of getting the text books they need for education?


Many of the professors write the books.

The bookstore sells the books and makes a profit on them.

Other costs are just passed on to the students in fees and increased tuition.

The students pay the costs of the books – but it is mostly covered by student loans anyway.

On the other hand, fighting against this costs money for lawyers and lobbyists.

Skeptical Cynic (profile) says:

Re: Re: University's are stupid

Yeah too true. But those Student loans have to be repaid and for my second masters those costs were over $1250 just for the books. That total is after what I got for reselling the books that I did not want or could not keep.

I think this is a golden opportunity for those Class Action Sharks to jump in and get their 97% fee but in this case is may not give any money back to those that over paid but might help those that come after.

mitshoo says:

Re: University's are stupid

In answer to your first sentence, they actually DO promote more open methods. Ever heard of an open access journal? Academics (at least some) are bending over backwards to try to figure out a way to make information more freely available:


Universities don’t have nearly as much money as you seem to think they do. At least, not enough left over. I’m sorry you had a bad experience with e-books. But the problem is, as you said, Digital Rights Management, not universities per se. I doubt Universities are getting too much of a kickback from this. They probably are forced to do it the way the e-book publishers want.

Anonymous Coward says:

Of course it makes sense that the DOJ sides against our public schools.

Public Education has been the #1 victim of budget cuts practically every single year for over a decade, to the point that we spend 7 times as much per prisoner in the justice system then we do per student in our schools.

This years ways of screwing over education even more are the following.

-Force schools to add armed security guards to their staff in the name of protecting students. Because despite all the NRA’s and their politicians advocating for this you’ll notice they NEVER suggest how to pay for it, which means the way to pay for it is lay off more teachers to hire armed guards.

-Make schools pay even more money for IP textboxes needed to teach students.

-Take more money away from public schools and give it to private schools, but do allow those private schools to say ‘no’ to educating your children for whatever reason they want, like your child having bad grades that would lower the school’s GPA they use to claim that they’re a better school then the public schools.

Anonymous Coward says:

Re: Re: It is 2013

More proof that Govt is the greater evil, as the sole authorizer of Monopolies. The evils of Govt are boundless, unless held in check, as the authors of the US?s founding documents warned us about.

So John ?Mr. BIG Govt? Fenderson, are you still confessing that Govt is easier to control than Corporations – “if we had to choose between those two Bigs (and I don’t think we do), then I choose Big Government. It’s easier to fix the government (who is us) than major corporations (whose behavior we have little to no say in.)?”
Quote reference: John Fenderson ?It’s easier to fix the government?”, regarding Monopolies.

Anonymous Coward says:

Lack of skilled people is a problem your country already appears to have, and if the publishers gave their way the problem will get worse, and industries will move to other countries.
The various open textbook efforts are the way to deal with this problem, so long as the publishers don’t kill by suing them out of existence. Unfortunately copyright law make this possible by claiming copyright infringement for ‘short quotes’.

Anonymous Coward says:

We need to better educate America!

Here’s the plan:

Disallow the use of sample texts in classrooms.
No supplemented articles allowed.
Make the students pay per book openend in the Library.
Get rid of story problems, unless students pay for access to those.

And most importantly: Don’t forget to claim that we’re doing this to better educate the students in America!!!

Anonymous Coward says:

Re: Re:

By now I think it’s well established that the Obama administration is incapable of feeling embarrassment.

Its a proud heritage we have going back to every presidental administration after Ike, and probably most administrations before Truman. Kennedy, Reagan and FDR included (though perhaps the term limit was a late act of semi-self-awareness on FDR’s part).

Anonymous Coward says:

what all governments really want to do is force all us plebs to work at least 16 hours/day, 7 days a week, not be paid anything just given a blanket for sleeping, 1 meal and a cup of water per day and then have to ask permission to eat and drink. all the time this is happening, the governments and all their rich, famous, powerful friends would be swanning around doing naff all except thinking of ways to get more done, by less people, for less food and drink!

shane (profile) says:


It seems to me that most folks that frequent Tech Dirt would consider themselves progressive at least on this particular topic, and it is repeatedly dismaying to me to see that, even on those issues where I – a somewhat conservative person in times past, at least according to those who like to tag me – am a progressive, the Democratic party is not a viable alternative for me.

Jonathan says:

Re: Progressive

Partisans fail to recognize that the party wants its faithful to sit down, shut up and swallow whatever they sell you. Yes, this is not just a Republican phenomenon, as anyone who is not utterly dependent on the outside world for identity and validation can see.

In my fantasy world I’d have both major parties declared terrorist organizations and send the lot of the party apparatchiks to Gitmo where they belong, but I wouldn’t let Carville and Rove share a cell.

Sabrina Thompson (profile) says:

I think if people started to write to their congressman or women to get less strict copyright laws they may listen if enough people write. I emailed mine. With the way things are going with copyright law will there even be a fair use clause in the future. What about the 2nd circuit court ruling on the first sale doctrine? It seems consumers are being more restricted on what they can do with what they buy.

please check out abolish the copyright monoploly @ facebook to show support for less strict copyright

Rekrul says:

The entire purpose of copyright law is supposed to be to promote the progress of learning.

No, that was the purpose of copyright law when it was first created. That hasn’t been its purpose for many, many years now. Today, the entire purpose of copyright law is to benefit the copyright holders. This is the definition that the government goes by. Nobody in the US government cares about the public as far as copyright is concerned (or at least not enough to make a difference). All they care about is keeping the entertainment industry happy so that the campaign contributions keep rolling in, and so that they can have a cushy job for the asking after they retire from politics.

The myth that modern copyright laws are supposed to benefit anyone other than the copyright holders has been debunked long ago.

DottyK says:

What I'd like to know

First thing, I’d like to put it on record that university fees in the US are beyond crazy – it’s like an alternate reality that people believe students can take on a financial burden equivalent to buying a house and then begin their lives. Are they taking crazy pills or what?
But on the issue of charging for extra e-copies of texts, I’m wondering how much they’re wanting to charge? Is it like 50 cents per copy or hundreds of dollars?
I don’t know anyone who got rich through academic writing, so I’m fine with authors getting royalties for copies of their works. Also, publishers are having to find their way in the increasingly paperless world. I feel more comfortable having CUP and OUP et al deciding who to print than having to wade my way through thousands of self-published authors to decide who was reputable.
So students are the most vulnerable players in this group, but authors need to be paid for their work. Where would the Copyright Department come down?

Lida Hasbrouck (user link) says:


As a cofounder of an edtech startup attempting to change the course materials industry, I see this as another instance of overzealous rights holders / publishers twisting the system to work to their advantage.

Publishers will do anything to squeeze every last dollar out of colleges, faculty, and even students.

This is exactly why we have to stop relying entirely upon copyrighted content. Open educational resources (OERs) must continue to become a real threat to greedy publishers, to revive the market back to health.

This is exactly why we started Ginkgotree – to give faculty freedom to choose the content they find most valuable, whether it’s free or paid.

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