Articles posted by Marcia Keyser

The Association of American Publishers (AAP) – Who are they?
According to their web site:
“The 300 members of AAP are building the future of publishing. We are America’s premier publishers of high-quality entertainment, education, scientific and professional content – dedicating the creative, intellectual and financial investments to bring great ideas to life. We are also at the forefront of publishing technology – delivering content to the world’s audiences in all the ways they seek it.”
So the AAP has 300 member publishers. How much of a percentage is that? According to PublishersGlobal.com, there are 2,674 publishers in the US, but it doesn’t break them down into types or sizes. Dan Poynter’s ParaPublishing tells us that there are six very large publishers in the US (all based in New York), between 3-400 medium publishers, and roughly 86,000 small or self-publishers. If the AAP has 300 publisher members, assuming they are medium or large, then they represent ¾ of the American publishing industry.
The AAP has been involved in copyright activities for many years. Their web site states:
“Book publishers are addressing enormous challenges worldwide in the protection of intellectual property. Their critical efforts include securing copyrighted works against unauthorized use in print and electronic formats, protecting the integrity and use of copyrighted works in the digital environment and developing viable compensation.”
The AAP has secured “copyrighted works against unauthorized use” by supporting the publisher’s side of the Google Books case, helping to fund the Georgia State E-reserves lawsuit, and now the Kirtsaeng case (First Sale).
The AAP is a strong supporter of free speech and consequently, the freedom to read. It has been party to some lawsuits and numerous publicity campaigns in support of this cause.

The Authors Guild
“The Authors Guild has been the nation’s leading advocate for writers’ interests in effective copyright protection, fair contracts and free expression since it was founded as the Authors League of America in 1912. It provides legal assistance and a broad range of web services to its members.” (http://www.authorsguild.org/) The AG provides members with free legal and business advice on book contracts, periodical and literary agency contracts, subsidiary licensing, royalty and copyright issues and other matters relevant to publishing (Wikipedia).
In recent years the Authors Guild has taken part in the lawsuit against Hathi Trust and against the Google Books project. It is active in cases in which authors’ rights may be abused.
Both organizations – the Association of American Publishers (AAP) and the Authors Guild (AG) have demonstrated that they see strong copyright control as essential to an author’s success. They support that worldview through lawsuits, promotional materials, and author education. Both organizations have every right to do as they do.
For those interested in alternatives to strict copyright enforcement, check these organizations:
Creative Commons
Open Educational Resources Commons
SPARC ARL

“The Hathi Trust is a partnership of academic and research institutions, offering a collection of millions of titles digitized from libraries around the world.” Full text of documents in the collection is available only to members of partner institutions (hathitrust.org).
The Authors Guild brought suit against Hathi Trust in September of 2011, alleging massive copyright infringement. Both parties filed motions requesting summary judgment.
A “summary judgment” is “a final decision by a judge, upon a party’s motion, that resolves a lawsuit before there is a trial…Summary judgment is awarded if the undisputed facts and the law make it clear that it would be impossible for the opposing party to prevail in the matter were to proceed to trial.” (Plain English Law Dictionary, nolo.com)

The plaintiffs (Authors Guild) moved to request that the court declare fair use not available to libraries as a defense, because libraries have the protections in section 108 of the copyright law. If you are not familiar with section 108, review it here. The Judge completely rejected this claim (A big win for fair use and libraries, Scholarly Communications @ Duke). In my humble opinion, Section 108 is very small, and offers very specialized exceptions for copying in libraries. There is no way it could substitute for Fair Use.

The defendant (Hathi Trust) had three assertions for summary judgment: first, that the Authors Guild was not able, under the copyright law, to sue on behalf of its members. The Judge agreed with this for US associations, but possibly not for foreign associations due to treaties. (A big win for fair use and libraries, Scholarly Communications @ Duke).

The second judgment requested by the Hathi Trust was that its Orphan Works project could not go to trial because it had not been carried out yet. Orphan Works are works that are under copyright but whose authors cannot be located. The Authors Guild was concerned about the Orphan Works Project would allow access to such works. The Judge in this case agreed that there was no case until such access actually happened.

The third – and most significant – summary judgment for the defendants in this case is whether the actions of the Hathi Trust can be supported by Fair Use. The Judge did a four factor analysis and came to the conclusion that Fair Use does support the creation of a digital library such as Hathi Trust. In conclusion, he said:

“I cannot imagine a definition of fair use that would not encompass the transformative uses made by the defendants and would require that I terminate this invaluable contribution to the progress of science and the cultivation of the arts that at the same time effectuates the ideals of the ADA.”

For the full Four-Factor analysis and more details, go to A big win for fair use and libraries, Scholarly Communications @ Duke, Kevin Smith, Oct 11, 2012. 

The Georgia State E-reserves Case, 2008-2012.

Those of us who work with or study policies regarding e-reserves and copyright issues have long wondered when and where this issue would first come to court.  It began at Georgia State University, in 2008.

On April 15, 2008, Cambridge University Press et al. v. Becker  was filed.

The plaintiffs (Cambridge UP, Oxford UP, and SAGE Publishers) avoided the state institutions sovereign immunity by seeking only an injunction, not monetary damages, and by naming individuals at the University that oversaw electronic reserves. They also wished to establish copyright guidelines for use by Georgia State after the case was settled.

Some months into the case, Georgia State announced new copyright guidelines. These included heavy use of the Columbia University Fair Use checklist. http://bit.ly/9fHhLg  Judge Evans agreed to use the new Georgia State system rather than the old one. (The old system was very lenient, and Georgia State paid very few clearance fees under it).

Many hearings took place. While at an ALA meeting, I had an informal conversation with some librarians from Georgia State. They said that many (often flabbergasted) faculty were being called to testify about their use of E-reserves and course readings. All the librarians had heard representatives from the publishers say that if the CCC and AAP weren’t footing the bill, they would not be involved. In June of 2011, hearings were closed. There was an announcement that a conclusion would be reached “in Fall or Winter.”  The decision came nearly a year later, on May 11, 2012.

“Judge Evans dug deep into the questions surrounding fair use and concluded—after thorough analysis—that copyright was meant to promote the writing of more books. She wrote, “There is no reason to believe that allowing unpaid, nonprofit academic use of small excerpts in controlled circumstances would diminish creation of academic works.”” (EDUCAUSE Policy Brief, A Case For Fair Use: The Georgia State Decision.” http://bit.ly/KeD0pk .  The plaintiffs had submitted 99 examples of how their works were being “infringed” by the E-reserves program at Georgia State. Ninety-five of the excerpts were determined to be examples of Fair Use.

The Georgia State decision, while most welcome, is relatively weak. It only applies to the district within Georgia represented by this federal court. Libraries outside this region do not have to abide by this decision.

It was fully expected that regardless of the outcome, this case would be appealed. On Jan 28, 2013, that appeal was filed. The US court of Appeals for the 11^th  District will hear the case. (Publishers and Library Groups Spar in Appeal to Ruling on Electronic Course Reserves, Chronicle of Higher Education, 2-1-2013). http://bit.ly/VzD9qx

On outcomes: there are many articles on the Internet and in law journals describing current and future outcomes of this case. I am calling attention to one that occurred almost immediately after the suit was filed. Georgia State hosted an excellent web site on copyright issues. It was large, in-depth, and written for the average student or faculty member. It had an excellent collection of scenarios to help people understand copyright. This great resource was removed very soon after the case was filed. I mention it to emphasize that the cost of legal suits goes beyond money and court orders.

For more information:  Georgia State Copyright Case: Resources (EDUCAUSE) http://bit.ly/14mlKbd

In 2005, a jointly authored document titled “Campus Copyright: Rights and Responsibilities” was issued. it was authored by the  Association of American Publishers , the Association of American Universities,  the Association of Research Libraries, and the Association of American University Publishers. Following the publication of this document, which “recognized the continuing difficulty of developing workable copyright guidelines” the Association of American Publishers began a practice of calling a university library or E-reserves department and offering to help review and rewrite its e-reserves policy. The offer was delivered with the implication that the existing policy was definitely in need of such review. (University presses welcome new Cornell guidelines on use of digital content. AAUP web site).

 We don’t know what happened in all cases, but Cornell University was the first to  announce new copyright guidelines for e-reserves, written with the help of the AAP. Cornell and the AAP made many glowing, happy announcements about their wonderful collaboration. According to Peter Givler of the AAP, the guidelines were “a wonderful example of what can be accomplished when people who disagree agree to listen to each other and talk it out.” However, “soon after the guidelines appeared, it was disclosed that Cornell had, in fact, agreed to “talk it out” under the specter of a copyright infringement lawsuit…” (Downloads, Copyright, and the Moral Responsibility of Universities. Kate Torrey, Chronicle of Higher Education, 6-15-2007)

  After Cornell, I remember other universities also developing new guidelines co-authored by the AAP, but have not been able to find their names.

 One year after its new guidelines were established, Cornell officials said that “the result has been a 70-percent decline in the use of e-reserves” (Downloads, Copyright, and the Moral Responsibility of Universities. Kate Torrey, Chronicle of Higher Education, 6-15-2007)

  This is the environment in which the Georgia State lawsuit initiated. Universities were being bullied (persuaded? convinced?) into restrictive e-reserves and online course content guidelines. Georgia State said “No”. Apparently they received several of these calls, and firmly declined the “opportunity” to work with the AAP. On April 15, 2008, Cambridge University Press et al. v. Patton (aka the Georgia State case) was filed.