2011 Charleston ConferenceIssues in Book & Serials Acquisition

Lauren Schoenthaler Senior University Counsel

Stanford University

November 4, 2011

(Fine print disclaimer: The views expressed in this presentation do not represent legal advice and do not represent the views of Stanford University. The views expressed in this presentation are solely those of the author, especially as they relate to ABBA.)

Georgia State Litigation: Setting the Stage

Cambridge Press, Oxford U. Press & Sage Publications filed suit on April 15, 2008, N.D. of Georgia

Alleges “systemic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works[.]

In 2008, Georgia State was on the far end of the continuum -- where on one side are institutions that always seek permission before putting things on electronic reserve and on the other side are institutions that never seek permission -- of almost never seeking permission.

Paraphrase of Laura Gasaway, Dean of Academic Affairs, UNC, Chronicle of Higher Education, May 12, 2008

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Since we last metAbout this time last year:

The court had recently issued a ruling on cross-motions for summary judgment; granted in part and denied in part

In May 2011 the case went to trialThe parties have now filed post-trial briefs with proposed

findings on the facts and lawThe world waits…..

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The Injunction RequestThe plaintiffs have requested the court to enjoin any

Georgia State faculty member fromPosting or distributing copyrighted materials unless the

faculty member verifies that the use complies with Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with Respect to Books and Periodicals, developed in 1978 AND

The total cumulative works posted without permission do not total more than 10% of all assigned reading for a particular course.

GSU must keep verifications for two years

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Refresher on the Fair Use GuidelinesBrevity & spontaneity

Brevity 250 word poem 2,500 word essay or story 1,000 words of an excerpt

Spontaneity Inspiration of teacher on spur of the moment The teacher does not have enough time to seek permission

Cumulative EffectOne copy per school One poem or essay, two excerpts or three graphs from one

work per term

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From 1976Fun Facts from 1976

Apple foundedSon of Sam begins killing spreeABBA is popularAverage cost of new house $43,400Average cost of gallon of gas .59 centsDigital technology not yet in common useInstant licensing not yet available

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Maybe 1976 is not the best judge of 2011

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Clarification to previous slide

Not that there’s anything wrong with thatSome of my best friends are in ABBA

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Accessioning Digital MaterialsSetting the Stage:

“Stakeholders—from creators and distributors to scholars and librarians—all started from the same point: fear of losses. Business fears loss of current and future revenue; scientists fear loss of data crucial for the progress of science and engineering; scholars and librarians fear loss of the cultural and historical record.” Preserving our Digital Heritage, NDIIPP Report

Why we Care- The Baghdad Battery

- 250 BCE – 200 CE- Review of 1,600 social science

research projects in 2008

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What we’re talking aboutFormally accessioning into a collection any data in a

digital formatCulling from the Web

WebsitesNewslettersReports

Archives collected/digitized by donorsSpecial considerations for faculty

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Fair Use Accessioning AnalysisFair Use Defense

Four Factors1) Purpose and Character of the Use

Commercial or educational TRANSFORMATIVE: Is the re-use of the material transforming

it’s original purpose to a new and different purpose?

2) Nature of Copyrighted Work3) Portion of Work Taken4) Effect on the Market Place

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Transformative in Action

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Culling Materials from the webLos Angles Times v. Free Republic, 54 USPQ2d 1453 (C.D.

Cal. 2000)Reproduction of news articles for commentary by Free

Republic users is not transformative and therefore not a fair use.

Righthaven, LLC v. Hoehn, (D. NV, 6/20/11)In dicta, court held that re-posting an article from a Las Vegas

newspaper to garner commentary was transformative fair useOne of six appellate cases pendingOctober 19, 9th Cir. Denied emergency request from

Righthaven to stay order of $34,000 in costs to Hoehn

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Culling Materials from the WebOnline Policy Group v. Deibold, Inc. 337 F. Supp. 2d 1195

(N.D. Cal. 2004)Making archive of company emails available to

demonstrate when company had knowledge of product flaw is a transformative use

The Swarthmore students who posted the emails had no intent to profit from them

Deibold itself had no intent to profit from them

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Words of CautionLicensing terms trump copyright

Do not permanently accession if access is subject to a temporary license

Beware the accessioning of “hacked” documentsCopyright law presumes lawfully acquired copy as the

starting point of the discussionWikileaks

Espionage Act Receipt of Stolen Federal Documents Protection of Covert Agents - First Amendment defense?

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Special Considerations for Personal ArchivesPrivacy Concerns

Student Records are forever protected under FERPA PhD students have FERPA rights You must have written permission from the student to include

Lifelong rightProtected informationGeneral privacy concerns

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Questions?

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