* Guest post by Amanda Zerangue (MLS, JD), UNT Libraries GLA
The Google Books Dispute Resurfaces
In a move that comes as a surprise to many keeping tabs on the Google Books dispute, Authors Guild recently petitioned the Supreme Court to hear its case against Google Books, arguing again that Google’s book digitization project constitutes copyright infringement. It is important to note that Authors Guild’s appeal does not mean the Supreme Court will hear the case– the Supreme Court’s practice of hearing and issuing rulings on cases of unsettled law make it unlikely that Authors Guild’s appeal will move forward.
A little background information may clarify why this seems like an exercise in futility on behalf of Authors Guild. It all started when Google, with the cooperation of many major libraries but without the permission of copyright holders, scanned and made available digital copies of millions of books, including some belonging to Authors Guild. The digitized books can be freely searched by the public for a specific word or term, and search results include “snippets” of text surrounding the search terms.
Authors Guild first brought suit against Google in 2005, arguing that Google’s actions infringed its copyrights. However, the District Court Judge agreed with Google’s argument that its actions were protected under “fair use,” which under 17 U.S.C. § 107, is not an infringement of copyright. Authors Guild appealed, and lost again in October 2015 when the Second Circuit Court of Appeals unanimously decided that the Google books project is legal and not an infringement of copyright laws. Relying on the HathiTrust decision, the Appellate Court held that the search function and providing “snippets” of text was transformative enough to fall under the protections of fair use.
While the issue seems both unambiguous and a settled area of law, we won’t find out until later in the spring whether the Supreme Court decides to hear the case and continue the copyright battle.
The New York Public Library’s collection of nearly 190,000 public domain items is now available for high resolution download. Since these items are in the public domain, they can be copied, reused, remixed, and distributed in any way. The collection also includes a cool visualization tool that allows users to browse the collection. Learn more and browse at NYPL’s website.
Rep. Tom Marino introduced HR 4241 on December 11th. This bill aims to establish the US Copyright Office as an agency in the legislative branch, which would move it from its current location in the Library of Congress. HR 4241 was referred to the House Committee on the Judiciary after it was introduced.
There has been talk of establishing the Copyright Office as an independent agency for some time. Maria Pallante, the Register of Copyrights & Director of the Copyright Office, advocated for this change in a letter to Rep. Conyers dated March 23, 2015. She claimed that making the Copyright Office independent would relieve any perceived biases that occur as a result of the Office reporting to the national library. Many copyright owners (publishers) believe that the Library of Congress puts its interests as a copyright user over the interests of copyright owners when it creates and enforces policies.
Pallante also believes establishing the Copyright Office as an independent agency will bolster the Office’s budget and other resources and allow members of the agency to provide better service to all branches of the government.
Opponents of establishing an independent agency believe this will lead to further restrictions on use of copyrighted materials both by libraries and by the general public.
The United States Copyright Office has recently created a Fair Use Index. This index is intended to make it easier for attorneys and laypersons to understand fair use and how to apply it. The database is searchable and provides citations to and summaries of court opinions, not the full opinions themselves. Users can generally access full opinions on Google Scholar (select the “case law” option), Justia, or PACER. The index will be updated regularly as new cases are decided.
There are several interesting commentaries about Elsevier’s new “article-sharing” policies, which point out that the policies actually impose further restrictions on how authors may share their works.
I found Kevin Smith and Stevan Harnad’s posts the most useful in terms of explaining how the terms of the policies negatively affect open access.
What do you think of the policies? Please share your thoughts in the comments.
Back in February, the plaintiff publishers in the case asked the trial court to reopen the record, meaning they wanted the court to examine the most current evidence in this case. This is consistent with the doctrine of Ex parte Young. Because GSU is a state university it is protected by sovereign immunity and the plaintiff publishers are barred from monetary damages. Instead, they can only get injunctive relief. Ex parte Young requires that the injunction must be forward-looking and cannot take into account past actions of the defendant. Therefore, the publishers asked the District Court to look for current evidence of alleged infringement. They want to see if GSU is continuing to violate copyright law (using the Eleventh Circuit’s ruling as a framework to determine infringement).
District court Judge Evans denied this motion and stated, ““[t]he first order of business should be to determine, consistent with the Court of Appeals rulings, whether the Defendants’ use of the Plaintiffs’ works …are protected by the fair use defense.” Only after all alleged infringements are ruled upon will the court determine any applicable remedies. This means that the district court will not reopen the record, and will instead analyze the original allegedly infringing works using the Eleventh Circuit’s framework.
Publishers Weekly has written extensively about the case:
The National Science Foundation (NSF) announced its plan for providing public access to results of NSF-funded research.
The plan (which is set to be implemented sometime in 2016) requires final versions of manuscripts and papers:
- Be deposited in a public access compliant repository designated by NSF;
- Be available for download, reading and analysis free of charge no later than 12 months after initial publication;
- Possess a minimum set of machine-readable metadata elements in a metadata record to be made available free of charge upon initial publication;
- Be managed to ensure long-term preservation; and
- Be reported in annual and final reports during the period of the award with a persistent identifier that provides links to the full text of the publication as well as other metadata elements.
Public Access to Results of NSF-funded Research, http://www.nsf.gov/news/special_reports/public_access/ accessed on March 30, 2015.
You can receive updates on the NSF Public Access Initiative by subscribing to the NSF System Updates listserv – send an email to: firstname.lastname@example.org
The Fair Access to Science and Technology Research Act (FASTR) was reintroduced in Congress on March 18, 2015. This is a bipartisan bill that would require certain federal departments and agencies to make research results funded by those departments and agencies freely available to the public. If passed, this bill will increase access to federally-funded research to scholars worldwide.
You can read the full text of the bill here: https://www.congress.gov/bill/114th-congress/senate-bill/779/text
SPARC has a nice FAQ on FASTR here: http://www.sparc.arl.org/advocacy/national/fastr/faq