Required Reading: Appeals Court Instructs District Court for Second Time on Fair Use of Course Materials; Lexology, November 30, 2018

McDermott Will & Emery - Jodi Benassi, Lexology; Required Reading: Appeals Court Instructs District Court for Second Time on Fair Use of Course Materials

 

"The US Court of Appeals for the 11th Circuit vacated a district court’s judgment for a second time, finding that the lower court misinterpreted its instructions on remand and failed to give each excerpt of the copyrighted works the holistic analysis the Copyright Act demands. Cambridge University Press, et al. v. J.L. Albert, et al., Case No. 16-15726 (11th Cir. Oct. 19, 2018) (Pryor, J)."

Why Are College Textbooks So Expensive?; Business Insider, November 27, 2018

Video, Business Insider; Why Are College Textbooks So Expensive?

"Almost 80% of the textbook industry is dominated by 5 publishing companies. They use restrictive codes and re-publish new versions of textbooks every 2 to 3 years. Due to these tactics, textbook costs overall have risen 67% from 2008 to 2018."

Publishers Escalate Legal Battle Against ResearchGate; Inside Higher Ed, October 4, 2018

Lindsay McKenzie, Inside Higher Ed; Publishers Escalate Legal Battle Against ResearchGate

"The court documents, obtained by Inside Higher Ed from the U.S. District Court in Maryland, include an “illustrative” but “not exhaustive list” of 3,143 research articles the publishers say were shared by ResearchGate in breach of copyright protections. The publishers suggest they could be entitled to up to $150,000 for each infringed work -- a possible total of more than $470 million.

This latest legal challenge is the second that the publishers have filed against ResearchGate in the last year. The first lawsuit, filed in Germany in October 2017, is ongoing. Inside Higher Ed was unable to review court documents for the European lawsuit.

The U.S. lawsuit is the latest development in a long and increasingly complex dispute between some academic publishers and the networking site."

Scientific publishing is a rip-off. We fund the research – it should be free; The Guardian, September 13, 2018

George Monbiot, The Guardian; Scientific publishing is a rip-off. We fund the research – it should be free

"Never underestimate the power of one determined person. What Carole Cadwalladr has done to Facebook and big data, and Edward Snowden has done to the state security complex, the young Kazakhstani scientist Alexandra Elbakyan has done to the multibillion-dollar industry that traps knowledge behind paywalls. Sci-Hub, her pirate web scraper service, has done more than any government to tackle one of the biggest rip-offs of the modern era: the capture of publicly funded research that should belong to us all. Everyone should be free to learn; knowledge should be disseminated as widely as possible. No one would publicly disagree with these sentiments. Yet governments and universities have allowed the big academic publishers to deny these rights. Academic publishing might sound like an obscure and fusty affair, but it uses one of the most ruthless and profitable business models of any industry."

Open Access at the Movies; Inside Higher Ed, September 10, 2018

Lindsay McKenzie, Inside Higher Ed; Open Access at the Movies

"[Jason] Schmitt's film raises some important questions -- how is it possible that big for-profit publishers, such as Elsevier, have fatter profit margins than some of the biggest corporations in the world? Why can't everyone read all publicly funded research for free?

Discussion of these questions in the film is undoubtedly one-sided. Of around 70 people featured in the film, just a handful work for for-profit publishers like Springer-Nature or the American Association for the Advancement of Science -- and they don't get much screen time. There is also no representative from Elsevier, despite the publisher being the focus of much criticism in the film. This was not for lack of trying, said Schmitt. “I offered Elsevier a five-minute section of the film that they could have full creative control over,” he said. “They turned me down.”

Schmitt said he made Paywall not for academics and scholars but for the general public. He wants people to understand how scholarly publishing works, and why they should care that they can’t access research paid for with their tax dollars."

[Documentary] Paywall: The Business of Scholarship, 2018

[Documentary] Paywall: The Business of Scholarship

"Paywall: The Business of Scholarship is a documentary which focuses on the need for open access to research and science, questions the rationale behind the $25.2 billion a year that flows into for-profit academic publishers, examines the 35-40% profit margin associated with the top academic publisher Elsevier and looks at how that profit margin is often greater than some of the most profitable tech companies like Apple, Facebook and Google.  

Staying true to the open access model: it is free to stream and download, for private or public use, and maintains the most open CC BY 4.0 Creative Commons designation to ensure anyone regardless of their social, financial or political background will have access.   

If you are interested in screening this film at your university, please fill out our contact form."

Free textbooks? Federal government is on track with a pilot program.; The Washington Post, May 8, 2018

Danielle Douglas-Gabriel, The Washington Post; Free textbooks? Federal government is on track with a pilot program.

"Proponents of open-educational resources have said the investment from Congress could further efforts to save students money on course materials. The cost of print textbooks soared 65 percent in the past decade, although prices are moderating, according to the Bureau of Labor Statistics. Academic publishers have maximized profits from college textbooks by setting high prices to recoup their investment and to offset limited sales.

Against that backdrop, open-source textbooks have emerged as a cost-effective solution for cash-strapped students. Open-educational resources include many of the same digital textbooks, streaming videos, tests and software that are produced by big-name publishers. Students can download the material free or print copies for a nominal price.

OpenStax, a nonprofit tied to Rice University in Houston, is one of the largest providers of open-source books. The company relies on funding from philanthropists, such as the Gates Foundation, to produce peer-reviewed digital textbooks for free and print versions for up to $55."

In Court, a University and Publishers Spar Over 'Fair Use' of Course Materials; Chronicle of Higher Education, 3/14/10

Jennifer Howard, Chronicle of Higher Education; In Court, a University and Publishers Spar Over 'Fair Use' of Course Materials:

"Maybe you're a professor who wants to use a chunk of copyrighted material in your course this spring. Or perhaps you're a librarian or an academic publisher. If so, the much-followed Google Book Search settlement is not the only legal case you need to be watching. A federal case involving publishers and a state-university system, Cambridge University Press et al. v. Patton et al., should produce a ruling soon, and its stakes are high.

First, a little history. In the spring of 2008, three academic publishers, Cambridge University Press, Oxford University Press, and SAGE Publications, brought a lawsuit against several top administrators at Georgia State University. The plaintiffs claimed that the university was encouraging the unauthorized digital copying and distribution of too much copyrighted material, particularly through its ERes and uLearn systems. ERes allows students to access digital copies of course material via a password-protected Web page; uLearn is a program professors can use to distribute syllabi and reading material.

The three publishers alleged that the unauthorized copying was "pervasive, flagrant, and ongoing." In February 2009, Georgia State put in place a revised copyright policy, including a checklist for faculty members to help them decide whether the amount of material they wanted to copy exceeded fair use.

Almost two years and many depositions later, both sides have filed briefs asking for a summary judgment in the case.

Legal briefs are a dry genre, but these tussle over some of the central questions of fair use in an academic context: How much is too much when it comes to copying rights-protected content without permission? To what extent is it the institution's job to shepherd its professors and students through the thorny complexities of copyright?

Unfair Use

The publishers' filing attacks what it calls the university's "blanket presumption of 'fair use'" in a higher-education context. The filing goes after the university's new fair-use checklist and copyright policy, saying that it "delegates the responsibility for ensuring copyright compliance entirely to faculty unschooled in copyright law."

The plaintiffs quote from the depositions of several Georgia State professors who acknowledge that they are not always clear on the copyright issues at stake. ("This is outside of my area of expertise," one is quoted as saying.) The publishers want the university to use the Copyright Clearance Center's licensing system or something like it for course materials.

The defendants take a strict we-didn't-do-it view. Their brief argues that "any alleged unlawful reproduction, distribution, or improper use was actually done by instructors, professors, students, or library employees."

Georgia State's filing also argues that the new copyright policy has drastically reduced the use of the plaintiffs' copyrighted material. It agrees with the plaintiffs that the defendants have no budget for permissions fees and that "faculty members would decline to use works like those at issue if there was an obligation to pay permissions fees."

So on one side you have a set of major academic publishers understandably eager to protect revenue, and on the other side you have a university that says it doesn't promote copyright infringement and doesn't have the money to pay a lot of permissions fees. One implication (threat?) one could draw is that if professors can't use what they need at no charge, they will probably use something else.

Complexities of Copyrights

I asked Kevin L. Smith, the scholarly-communications officer at Duke University, for his reaction. Mr. Smith helps scholars sort out copyright complexities—a function that is becoming ever more essential in university life, as this case makes very clear—and he has written about the GSU case on his blog, Scholarly Communications

For the moment, publishers appear unwilling to go after individual professors. "These faculty members are the same people who provide the content that university presses publish, so it would be really self-defeating," Duke's copyright maven, Mr. Smith, explained. "It would also be an endless game of 'whack-a-mole.' They would prefer a broad judgment against a university."
In any case, the Duke expert said, a fair-use case like this deserves more than a summary judgment. This case cuts to the heart of how many professors choose course material now and how students use it. Summary judgment or not, Duke's Mr. Smith said, "I think faculty and administrators should be very concerned.""

http://chronicle.com/article/In-Court-a-University-and/64616/?key=Tz12clBqMCdEbCY2KCRCfndROXx9chlxPXoWMS4aYlBS