Authors Guild, Inc. v. Hathitrust revisited

On Wednesday, October 30, 2013, the Second Court of Appeals heard oral arguments regarding the appeal filed by the Authors Guild claiming that the Hathi Trust (HT) collection is a security risk, requesting an injunction that would halt the HT project, and seemingly advocating that the HT could not use both section 108 (library preservation, use for personal study, interlibrary loan) and fair use (section 107) to legally justify its scanning and provision of access to digital items for research purposes and to accommodate the blind. During the palaver between the justices and the attorneys for all parties involved, the Authors Guild attorney’s main argument was that the HT collection created a large security risk for the copyright owners. In essence, the Authors Guild attorney advocated that a library could not guarantee that a hacker could not breach an information system and view the full-text or download the full-text of one of the copyrighted items in the collection. Remember one of the primary purposes of the HT collection is so that individuals can view portions of, or specific words used in an item for research purposes (similar to Google’s Ngram tool), not necessarily a complete item in the collection. Even though the Authors Guild attorney seemed to agree that using the HT collection for such a purpose provided a socially beneficial purpose and that the Authors Guild had no objection to the search features, the Authors Guild attorney incessantly argued that there was no way a library could ensure each item in the HT collection could remain secure from a security breach in perpetuity. At one point, one of the justices suggested that libraries could just purchase liability insurance for protection of such a breach. I am not sure libraries would be too keen on such an idea of purchasing an extra insurance policy for such an unlikely event. The justices on the Second Court of Appeals panel did seem to agree that HT can use both section 108 and fair use to attempt to justify this endeavor. We will discover in a few months if the appeals court agrees with the district court’s holding that supports the scanning of items for socially beneficial purposes such as providing access for the handicapped and for language pattern studies.

How will social media impact copyright?

Many librarians use social media in their pedagogy and in non-pedagogical collaboration with colleagues. So when forwarding a link to (or the full-text) a favorite article, or a short Facebook or Twitter post to a colleague via Twitter, Facebook…, does this constitute copyright infringement? Current copyright statutes give individual creators instant copyright protection when they create a tangible item with a modicum of originality. An article surely suffices as an item with original thought in a tangible format, and so does a one sentence tweet. Thus, whoever the creator is of such an article or tweet, he or she owns copyright of that article or tweet. Technically if either of these items is forwarded by another person via any social media outlet, this is creating a copy and possibly a derivative of the original article or tweet, usually without the permission of the original creator. What about images or orphan works floating around the social media infosphere? Every time we click “Share” and send an image to a colleague on Facebook, have we gone through the fair use checklist to see if we can re-share?

Some have asserted, when original creators place items on social media platforms that they have created an implied license and therefore others may use this information. Also, in practice, when we re-tweet links, 30 or more character statements… probably we will never face a copyright infringement lawsuit, simply because no one really cares if such items are perpetually shared. That said, as libraries are now using social media to advertise, complete pedagogical endeavors, advocate its goodwill… it is best to ensure all images, links, articles… used in such endeavors are checked to ensure they meet some type of copyright exception (fair use, permission granted, or are licensed with some type of Creative Commons license). When using social media with instruction, ensure students understand what is kosher and not kosher regarding forwarding images, links to videos on YouTube, links to articles…

Some possible ways to promote the dos and don’ts of social media:

• Provide training regarding what is and is not acceptable when using social media in concert with pedagogy
• Be sensitive to privacy issues when using social media
• Provide training regarding the possible ramifications of forwarding, posting copyrighted, privacy information
• Look for images licensed with Creative Commons licenses, or a similar reliable license
• Use public domain information
• Monitor student in-class posts
• Offer centralized sites that convey information related to social media and copyright (e.g., websites, videos, mp3s..)
• Walk through the fair use analysis before sending a copyrighted image…
• When forwarding videos, try to link to home pages, and to reliable sites (link to the British Museum, not Bob’s favorite art)

Funnier side – City of Portland suing over public restrooms

On the lighter side, the City of Portland is suing Romtec Inc. and alleging Romtec infringed the city’s copyright on a port-a-potty design. Portland claims it first designed and sold a port-a-potty that offers slats at the top and bottom that allows police to see how many people are inside, and an anti-graffiti mechanism at the hand-sanitization station. Portland claims Romtec stole both of these designs and is now selling their version of the port-a-potty for significantly less. It will be interesting to see how the courts “flush” away any irrelevant facts in this case.