Hathi Trust Digital Library Wins on Appeal

Yesterday, the Second Circuit Court of Appeals decided four issues that support library usage of copyrighted works via fair use. The court held that 1. creating copies of copyrighted works for the purpose of making a full-text searchable database, and 2. providing those works fully accessible to individuals with disabilities are both legal under the fair use doctrine. Further, the court held that 3. the Authors Guild did not have standing to sue on behalf of other copyright holders, and 4. the issue of whether it is copyright infringement for the Hathi Trust Digital Library (HTDL) to digitize orphan works is for now a moot point, and not ripe for adjudication.

Creating a full-text searchable database is fair use

The court agreed with the district court that the HTDL utilization of copyrighted works to create a full-text searchable database is fair use. The Authors Guild argued that the copies themselves equated to infringement and that the database presented a security risk in that hackers could breach the database and obtain copies of copyrighted works and disseminate them freely. The court disagreed with both of these assertions, and reasoned 1. when using the database only snippet views are shown, and valid and reliable security software is implemented such as “choke,” which prevents inappropriate amounts of a document to be displayed and it thwarts mass downloads of documents. The court also heavily relied on transformative use, which I wrote about last week. Most courts currently examining copyright infringement issues are following the current judicial trend of deeming copying of copyrighted materials fair use when said use is transformative. This appellate court described in great detail that transformative use occurs when  a subsequent user creates a derivative of an original work that serves a separate purpose, creates a different character, or generates a new use. This court also echoed other courts in opining that when a derivative is transformational (first factor of fair use), the other three factors do not hold as much weigh in the fair use analysis. That statement is very important for libraries, as libraries often make copies of protected works but the copies create transformative purposes. The court referenced several recent cases that followed these lines of transformational reasoning: Perfect 10, Inc., 508 F.3d at 1165; Arriba Soft Corp., 336 25 F.3d at 819; and A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639‐40.

Providing these works to disabled individuals is fair use

In deciding whether providing access to the copies of copyrighted works for disabled individuals is infringement, the court held such copying and provision of access was not transformational. The court reasoned that such copying did not create a new purpose, character, use… of the material. In other words, the original creation of the work was to disseminate information to a reader. The court cited other cases that reasoned that changing formats such as translations of a work from English to Spanish, or creating an audio book from a print book, are merely derivatives, not serving a new purpose, character, or use.

However, the court held that such use is still fair use, and it cited legislative history and another case that stated ““Making a derivative of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of fair use, with no suggestion that anything more than a purpose to entertain or to inform need motivate the copying.” Sony Corp. of Am., 464 U.S. at 15 455 n.40. The court also referenced legislative history that declared The House Committee Report that accompanied codification of the fair use doctrine in the Copyright Act of 1976 expressly stated that making copies accessible “for the use of blind persons” posed a “special instance illustrating the application of the fair use doctrine . . . .” The court also reasoned that publishers usually do not make copies of works for the disabled, and authors usually forgo any royalties that are generated for such copies. Further, the number of accessible books currently available for the blind are approximately only a few hundred thousand, thus the market effect of such copying and access to benefit disabled individuals would be miniscule. Therefore, the court held such use is fair use.

I do not completely agree that making copies for disabled individuals in not a transformational use. I am not sure other judges or justices would agree either. I do not think translations of a work, or changing formats of a work (print to audio-book) is the same endeavor as changing a print or digital work to an interface with which a disabled individual may interact. However, I suppose fair use was reached in this case based on legislative history, so perhaps the judge’s analysis is not as important to most, as long as the correct decision was made.

Preservation and orphan works

The court mandated that the district court reevaluate the standing issue regarding whether the HTDL can preserve digital copies of the books in this collection in perpetuity. The appellate court noted that the district court never determined whether the Authors Guild had standing to adjudicate this claim. In essence, a plaintiff has standing to sue if they have a legitimate interest in a case. For example, when Michael Jackson died, many of his family members filed lawsuits to receive the money and other legal rights to his property, and they were entitled to lawfully sue Jackson’s estate because they were his legal heirs, or they had contracts with him… However, I could not have sued to obtain notoriety rights or money from his estate because I was not mentioned in his will, I was not a blood relative… So, I would not have had standing to sue his estate. Similarly, in this case, the court notes that § 501 of the Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf. Thus, the actual copyright holders should have brought suit in regard to the preservation claim, not the Authors Guild, which does not have standing. As a side note, the copyright holders still could file suit for this preservation claim.

Orphan works project

In this part of the lawsuit, the Authors Guild was basically claiming that if the HTDL ever proceeded with offering orphan works for public view then whatever procedures they implemented would equate to copyright infringement. The court seemed to find such an allegation ludicrous, and rejected the issue as not being ripe for adjudication. In other words, since the HTDL is not currently offering digital access to orphan works no hardship is being presented to unknown copyright holders. The court reasoned that how could anyone know whether the procedures utilized to implement an orphan works distribution would equate to infringement when the project has been on hold. The courts refused to play soothsayers on this issue.  

In sum, this case is another great win for fair use and libraries. I do not completely agree with the analysis regarding whether providing access to disabled people is transformational, but it was deemed fair use none-the-less. Also, looking ahead, this decision may foretell how the Google Books case will be analyzed and decided. Also, one or both of these cases (HTDL and Google Books) may end up at the Supreme Court level. I think it would be a gamble for the Authors Guild to appeal to that level (and the Supreme Court may not even take the case on appeal), but they are well funded and they may do so. I look forward to seeing how the Google Books appeal reads. 

Beastie Boys, Libraries, and Copyright

Yesterday, a New York City jury awarded the Beastie Boys 1.7 million in a copyright infringement case against Monster Energy Drink. Monster apparently admitted to using Beastie Boys songs in an online advertising video without the still living Beastie Boys and the estate of Adam Yauch’s permission.  The result of this case is odd when juxtaposed with a lawsuit filed by the Beastie Boys in November of 2013 against GoldieBlox, Inc. that alleged GoldieBlox, Inc. inappropriately used adaptations of the Beastie Boys’ song Girls to promote GoldieBlox toys for girls. In the GoldieBlox case, GoldieBlox successfully argued that its song adaptation was a parody of the Beastie Boys song Girls. In essence, GoldieBlox argued that its version of the song promoted women’s rights, whereas the Beastie Boys version of Girls was demeaning to women. The parties in the GoldieBlox case ultimately settled and the case was dismissed with prejudice. The GoldieBlox case presented many issues such as: 1. Can one make a parody of a parody? The original song created and performed by the Beastie Boys was considered a parody. 2. Is this second parody transformative, and thus does it create a transformative market? 3. How do ancillary legal issues affect copyright infringement cases?

I think the answer to the first question is, yes, one may make a parody of a parody. As long as the second parody is poking fun of the initial creation, by definition, it is still a parody.

The second question is troubling in regard to how the Monster case was ultimately decided. In the GoldieBlox case, it was assumed the Beastie Boys settled because the GoldieBlox version of the song probably created a parody that was transformative, and thus created a transformative market that did not compete against the Beastie Boys market for their version of the song Girls. Numerous courts have followed the current trend of allowing subsequent creators to use and tweak copyrighted items, and deemed such use as fair use, as long as their new creation is transformative, and it thus creates a transformative market. Perhaps the difference between the Monster and GoldieBlox cases is that Monster did not create their own version of the Beastie Boys song, unlike GoldieBlox.

However, our third point, how do ancillary legal issues affect copyright infringement cases is relevant in both cases. Adam Yauch, a former and now deceased member of Beastie Boys, wrote in his will that the Beastie Boys would not license their music for advertising. In the GoldieBlox case, this seemed to weigh in favor of giving permission to GoldieBlox to create their own version of Girls and use it as they deemed necessary, because the explicit statement in Adam’s will seemed to clearly mandate that there is no readily available licensing apparatus with which to garner permission to use the Beastie Boys songs. However, the New York jury in the Monster case seemed to read the explicit statement in Adam’s will as meaning, Monster should have asked for permission to use the song Girls. It will be interesting to see whether this case is appealed.

For libraries, the GoldieBlox case offers further support for the trend gaining judicial support that when someone uses a copyrighted item in a transformative way that subsequently creates a transformative market, this is considered fair use. This trend is especially gaining momentum in the non-profit world, such as libraries. However, the Monster case reminds us that other legal issues such as probate (in this case possibly licenses, although it is debatable), can affect our decision in how to use copyrighted materials. 

The Resource Center LGBT Collection: 50 Years of LGBT History

The Resource Center LGBT Collection: 50 Years of LGBT History digital exhibit presents materials selected from the Resource Center LGBT Collection of the UNT Libraries and documents the issues, organizations, events, and people that have impacted the LGBT community in the Dallas/Ft. Worth region and beyond.

The Resource Center LGBT Collection: 50 Years of LGBT History collection contains materials donated by and relating to the groups and individuals who fought for equal rights in the LGBT community.  Organizations, such as the Dallas Gay Political Caucus, the Dallas Gay Alliance (now known as the Dallas Gay and Lesbian Alliance) and the AIDS Resource Center and organizational leaders, including John Thomas, Don Baker, Bill Nelson, Terry Tebedo, William Waybourn, Mike Richards, and Cece Cox contributed papers, photographs, and personal artifacts. These materials provide an intimate and personal perspective of the triumphs and struggles experienced by the LGBT community in the Dallas/Ft. Worth region.

LGBT Pride Month is currently celebrated each year during the month of June.

Bonnie and Clyde

May 23, 2014 marks the 80th anniversary of the deaths of outlaws Clyde Barrow and Bonnie Parker, ending their crime spree.  A search for "Bonnie and Clyde" in The Portal to Texas History brings up quite a few photographs of places they visited.  You can also find contemporary newspaper accounts of their activities.  Additionally, our Clyde Barrow Gang Collection is a highly-popular collection of items from the Dallas Municipal Archives, containing photographs as well as fingerprint cards and other police documents.  In fact, four of the top ten most-used items across the entire digital collections come from the Clyde Barrow Gang Collection.  Be sure to have a look!

--submitted by Hannah Tarver, Head, Digital Projects Unit

Music and Copyright

Dealing with copyrights in music always presents interesting conundrums. First, music usually has two separate copyrights, one for the musical score ©, and one for the musical sound recording ℗. Thus, like real estate (receiving mineral rights and above-the-land real property rights), when one is dealing with music, he or she must take into account both types of copyrights. A common challenge posed to libraries manifests when an acquisition of a musical item occurs, and the library or the educational institution it serves wants to post the music somewhere, perhaps in a special collections display. The librarian may have ensured during the acquisition that the donor signed over his or her rights to the musical score. However, if the rights holders to the sound recording (usually the recording studio) do not sign over their rights to the donee (the library), then the library does not have permission from the recording studio to place the item in the special collection. Of course, the librarian might be able to rely on fair use, or another statutory exception, or obtain permission form the recording studio. That said, the pertinent point is one needs to be cognizant of the fact music usually presents two separate copyrights: The creator(s) of the musical score, and the creator(s) of the sound recording. To further complicate matters, each of these separate copyrights may be further owned by multiple parties. Most musical bands create a contract at the formation of the band (after it reaches a certain notion of notoriety, starts making real money) that details how much percentage each band member owns of the band (e.g., 25%, 25%, 25%, 25%). This agreement also depicts how much copyright each band member owns. Also, the recording studio’s copyright may be broken into various percentages as well. Thus, to utilize a copyrighted song written by such a band, one would have to obtain numerous copyrights to ensure proper use, or rely on a statutory exception. Of course, many performing rights societies now make this easy by allowing one to pay a license to ensure (as much as possible) that all rights holders receive their royalty. Some of these rights societies consist of the American Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music International (BMI), and the Society of European Stage Authors and Composers (SESAC). Fair use is also always an option as well.

Other interesting notes about music and copyright include:

  1. Sound recordings were not given federal copyright protection in the United States until February 15, 1972. Thus, before that date, music was only subject to one federal copyright. However, most states issued some form of copyright protection for sound recordings pre February 15, 1972, and this copyright protection was usually issued in perpetuity, so it is much more restrictive than federal law. Thus, when a question arises about the use of a sound recording, it is important to attempt to decipher the date of the recording, and then whether it has state or federal copyright protection. XM Radio, for example, is currently being sued for allegedly never paying pre-1972 sound recording royalties to rights holders (they apparently did pay the royalties for the musical composition copyright).
  2. An amendment to the current United States Copyright Act in 1995 added a right to the exclusive “bundle of copyrights” given to creators of works. This right is known as the right to perform sound recordings by means of digital audio transmission. This right normally is relevant to restaurants or other public venues that perform sound recordings via digital audio transmission, and these entities also may exercise some statutory exceptions based on their venue configurations and technology used to make such a performance. However, for libraries, this right rears its head when the library houses certain sound recordings and wants to perform them publicly or via a virtual classroom. For example, interestingly, the TEACH Act 110(2) mandates that one may perform nondramatic musical works in distance education, but dramatic works may only be performed in reasonable and limited portions via distance education. Of course, both of these performances could be performed in full in face-to-face classes via section 110(1), which gives permission to “perform music.” Thus, the question is often broached, what is “reasonable and limited portions” for virtual educational use? Yet, this question has never been answered clearly by Congress or by the courts. So, fair use is probably the best bet when dealing with such an issue.
  3. Another interesting caveat when dealing with music is the statutory distinction between a sound recording and musical score for purposes of library preservation and Interlibrary Loan. For example, section 108, which governs library copying of copyrighted works for preservation, ILL, and personal study, only allows libraries to make copies of the musical scores for preservation and replacement, yet the rules allow for more liberal use when a library copies a sound recording with no accompanying music. For example, a library could copy printed sheet music and store it for preservation, but it could not copy it and disseminate it via ILL, based on section 108. However, keep in mind the library probably could copy the same sheet music and distribute it via ILL based on section 107 (fair use). In another example, a library could copy a sound recording of a presidential speech and disseminate it via ILL based on section 108 because the presidential speech does not consist of a musical composition.

These are just a few examples of the fun mental labyrinths presented when copyright and the use of music collide. The take home points are to remember music usually has two separate copyrights with possibly multiple copyrights holders (although performance rights societies can sometimes  simplify this matter), regardless of when the musical composition was created; look at state law pre February 15, 1972; an exclusive copyright for music includes the right to perform sound recordings by means of digital audio transmission; and sound recordings and musical compositions are sometimes dealt with differently under section 108, which dictates library preservation, ILL, and personal study use of copyrighted works.