Stop Pirating Copyrighted Course Readings

John P. McCaskey
A compliance officer at one university told me that, unless someone complains, dealing with this piracy by professors is a low priority.

If everyone on campus knew that professors regularly handed out shoplifted candy in class, would the university really do nothing unless the grocers complained? What message would that send to students?

lquilter
Interesting opinion, but how do you square “handing out copies in class” with 17 USC 107 “fair use”, which says, “[t]he fair use of a copyrighted work, including such use by reproduction in copies … for purposes such as … teaching (including multiple copies for classroom use) … is not an infringement of copyright.”? Congress squarely envisioned classroom handouts as fair use.

Each situation you describe — copy shops, emailing a pdf, library ereserves — are different, involving different assessments under each of the four fair use factors. Some of the uses you mention involve for-profit actors, which affects the first factor — the commerciality of the use. Some of the uses you mention involve durable long-lasting copies, which certainly affect the substitutability of the use (a fourth factor consideration).

Saying that every use is equivalent to for-profit photocopy shops that produce permanent bound copies for profit is unfortunately the sort of over-simplification that creates more confusion than clarity. It would be more useful to campus faculty if you would instead talk about how to weigh the four factors and determine whether a use is likely to be fair or not. A number of campuses have developed “fair use checklists” that help make it easier to assess whether a use is fair — Kenny Crews’ checklist at Columbia was one of the earliest (http://copyright.columbia.edu/… Georgia Harper at University of Texas has a “Copyright Crash Course” that is wonderful, and includes a fair use review (http://copyright.lib.utexas.ed….

Also, I’d note that there are at least a couple of other options for faculty who don’t like being divested of their rights when publishing with a particular publisher. In addition to “don’t publish there”, authors can and should negotiate their contracts. Strike-throughs and inserted language are easy enough to do and can preserve authors’ rights to re-use their own content. For authors who are negotiation-shy, a campus open access deposit policy will preserve access to their materials without requiring individual negotiation.

John P. McCaskey, reply to lquilter
Yes, Congress envisioned cases of fair use in scholarship, commentary, teaching, news reporting, and others. But just using something for those purposes does not make it fair use. The section goes on to give the criteria.

Simplifying and essentializing here is good, not bad. It promotes honest thinking and respect for fellow citizens. If it is illegal for the bookstore’s copyshop to photocopy and bind a set of journal articles without getting copyright clearance and to charge students for the copying and binding, it is equally illegal for the local no-name copyshop to do the same. Legally there is no difference. Same if your department’s administrator makes and binds the copies and cover the costs out of department funds. Same if you do it at home. Same if you bind it with GBC binding, staples, a rubber band, or nothing. Same if you email or upload the PDF and tell the students to print it themselves.

For nearly all course readings, weighing the four factors is easy: Let a reputable copyshop decide. If it’s illegal for the copyshop to do something, anything you do to “get around” the copyshop is illegal. Your very intent to circumvent is ipso facto evidence of piracy.

The only out you have is to say the copyshop shouldn’t be getting copyright clearance and is wasting students money—which they would want to do because . . . because . . . because what exactly?

lquilter, reply to John P. McCaskey
But copyshops (for-profit entities) are not legally the same as universities (nonprofit educational institutions). Characterizing choosing between different sets of entities, with different sets of facts, as “circumvent[ion” is disingenuous to say the least. A reputable copyshop can only decide for itself. It can’t make the decision for some other entity, with a different balance of rights and interests and factors.

The discussion over photocopying by libraries and for use in classroom settings was not new or surprising to Congress when they were considering the 1976 Copyright Act, which is precisely why they included “multiple copies for classroom use” as an exemplar of the sorts of uses that can constitute fair use. It’s hard to see how, under your analysis equating libraries and professors with for-profit copy shops, “multiple copies for classroom use” would ever be a fair use. If the statutory text is to mean anything, then there have to be some cases in which “multiple copies for classroom use” are fair uses.

The courts which have looked at these matters concluded that for-profit copy shops were not making fair uses, but the analysis in those cases leaned heavily on the for-profit element. If you take away the for-profit element, then you have no case law holding that library uses are infringements, and certainly none holding that handouts in class are infringements. The Georgia State University case, currently under appeal, really goes the other way.

I’m in favor of clear and simple instructions, but misstating the law in a simple way is unfortunately confusing. Balancing four factors isn’t actually that difficult, and any faculty member I’ve sat down with for 10 minutes has been able to grasp the concept. If you’re still at Stanford, I could connect you with several people who could help you better understand these issues in a very short amount of time.

Brandon Butler, reply to  John P. McCaskey
Leaving aside Laura’s excellent points distinguishing commercial copy shops from the other contexts where professors might share materials with students, it is worth noting that copy shop practices are the result of a series of flawed circuit court opinions that, thanks to skillful litigation by the publishers, enshrined a hyper-conservative vision of fair use as applied to those shops. So, while it’s true that the copy shops are surely paying permissions under a perceived legal obligation rather than out of a desire to waste students’ money, it is not therefore true that everyone else should follow their example or live under the same legal regime.

Since those cases were decided in the 1990s, courts have taken an increasingly progressive view of fair use, applying the doctrine to use of entire works in many contexts where there is arguably less equitable support than there is in the non-profit, educational one. To take a recent example, the Second Circuit court of appeals, which hears the majority of copyright appeals in the country and is widely followed by its peers on copyright issues, recently held that fair use protected Bloomberg LP when it published a recorded earnings call by Swatch Management Group—in its entirety—as part of its news reporting on the firm. The idea that fair use should be so small that one could drown it in the bathtub is a publisher’s fantasy, not a legal reality.

This is not to say that every educational use will be a slam dunk fair use, or that teachers shouldn’t take copyright seriously and model good practice for their students. Rather, it is to say that copy shops are not good models of what the law currently requires in distinguishable contexts. Indeed, one court (the Northern District of Georgia, in the GSU case, which is now on appeal) has explicitly distinguished those cases as inapplicable to the non-profit education context, and held that the rules copy shops follow are unreasonable limitations on education when imposed directly on professors and universities.

John P. McCaskey, reply to Brandon Butler
I’m at Brown now. We have two copy shops. One has space inside the bookstore, clears copyright permissions, and provides coursepacks that the bookstore puts on shelves. All professors know they can avoid paying copyright permissions by going to the small shop around the corner. So the “small” shop produces the vast majority of Brown’s course readers. It’s what keeps them in business. It’s the for-profit shop that doesn’t pay for permissions and the non-profit one that does.

On “multiple copies for classroom use,” yes, there are many cases in which that is fair use. Same with the other enumerated purposes—scholarship, commentary, news reporting, research, etc. If you have one of those purposes, then you can discuss whether use is fair or not. But having one of those purposes is not itself any evidence for or against whether use is fair.

If I buy one copy of a copyrighted book, make twenty copies of it, and hand those out in class so that my students don’t have to buy the books, that’s infringement. If I scan and upload the book, that’s infringement. There is nothing gray there, never has been. These are black-and-white, clear-cut cases.

Almost all cases I see on campus are equally clear-cut. Rarely do any even fit under Judge Evans’ looser criteria (and that ruling still applies only in Georgia and is under appeal).

I’ve never seen a case where the university copy shop’s determination would not apply to classroom handouts.

And as I say in the original post, if your library or IT department won’t say they’d legally defend you if you got sued while following their guidelines, don’t trust their guidelines.

Brandon Butler, reply to John P. McCaskey
This statement is simply false as a matter of law, and on the face of the statute:

“But having one of those purposes is not itself any evidence for or against whether use is fair.”

There is, of course, a difference between something being evidence and something being decisive, a distinction that any lawyer can appreciate. But there is simply no doubt that the educational purpose of a use is very often important evidence in favor of fair use. Straw man arguments about copying entire books are beside the point when most academic uses are of portions of books, articles, and other works.

John P. McCaskey, reply to Brandon Butler
Our disagreement on this part may be semantic. Fair use isn’t even a possibility unless the purpose is news reporting, research, teaching, commentary, etc. If that’s the context, then the four criteria determine what is fair use. If you want to say the initial qualifier is some meta-level first-order evidence, OK, I’ll go along. It’s just that that doesn’t get you very far. “But this is for teaching [or news reporting or research]!” “Of course, that’s why we’re here. Now present your evidence that it’s fair use.” Or maybe you could say the four criteria indirectly capture aspects determined by the purpose. OK. I won’t argue with that.

But, really, I don’t mean to tell professors what is and isn’t fair use. I’m just saying to them:

Your most reliable guide on that question is what the bookstore’s copy shop says. Anything you do to get around their judgment is almost always piracy.

If your university publishes guidelines, is willing to review your application of them, and is willing to defend you in court if you stick to them (as GSU did), sure, use those guidelines. But no university would do that and allow the wholesale copying and scanning that is common today. (Even GSU didn’t try to.)

Brandon Butler, reply to John P. McCaskey
And again, I’m telling you that copy shops are laboring under a distorted version of fair use that is virtually unique to them owing to crummy litigation choices and bad case law made more than a decade ago in a handful of circuit courts. The guidelines they follow are hyper conservative and out of step with contemporary fair use jurisprudence. On the question of indemnification, faculty should know that the risks of litigation are actually very, very low. Between state sovereign immunity, qualified immunity, and the limitation on statutory damages in 17 USC 504(c)(2), there is just not any reason for anyone to run around suing professors over a use that is even arguably fair. So, the likelihood of being sued despite trying conscientiously to exercise your fair use rights is vanishingly small, while the lost learning opportunities that result from hyper conservative copyright “compliance” are real and tangible the moment a professor decides censor herself.

John P. McCaskey, reply to Brandon Butler
On 1: You needn’t repeat it to me. Go tell the coursepacks desk at every college bookstore in America: “You are laboring under bad interpretations made over ten (yes, over ten!) years ago. Stop wasting your students’ money by paying for reprint permissions. If you need legal defense, call me. Here’s my card.”

On 2: Of course no publisher will go after one law-breaking professor. And when professors take advantage of that fact, parade it in front of students, and make those students the beneficiary, the professors are being bad role models. If you want to protest some law or interpretation with a little act of civil disobedience, go do it on your own. Don’t abuse your position of authority and make students participate.

Vivek Mehra
A truly eloquent piece that goes to the heart of issues dogging everyone especially authors and publishers.

Michelle Adams
Extremely well written! Probably the best, most straightforward piece I have every read on copyright and piracy.

John P. McCaskey, reply to Michelle Adams
Thanks Michelle. Share it widely!