LIS 855: Reading Journal Week 3

Reading list:

  1. Litman Digital Copyright Chapters 7-13.
  2. CONTU 1978 (National Commission on New Technological Uses of Copyright Works)
  3. CONFU (The Conference on Fair Use) 1997 – just read the basic overview
  4. ProCD vs. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)
  5. Harris Licensing Digital Content Chapters 1-2

Accounts of actual court cases and legislative and policy-drafting processes are so much more interesting to read than general overviews of how copyright works.  This is not to say that general overviews are unhelpful, but oftentimes I find analyses of specific laws and their applications much more insightful about how copyright law actually works.  After all, copyright law (or any law) works by interpretation and enforcement, and actual cases show how those two things differ by historical period, geographical location, as well as a host of other things.

Reading over the CONTU guidelines, I was amazed by how much exemptive leeway has traditionally been given to libraries and archives in copyright law.  One loophole I thought I detected in the guidelines: I don’t believe they specify how they count the 6 copies that the achievement or exceeding of which would constitute “systematic reproduction” and therefore open a library or archive’s interlibrary loan practices to claims of copyright infringement.  Would that be 6 copies of the same item distributed by any one lending institution in a calendar year?  Or 6 copies received by a requesting institution?  by a requesting individual?  Or, more drastically, 6 copies of the same item circulated within any one ILL consortium?  I cannot imagine the latter was what was meant, but I could not tell from the guidelines how those 6 copies were to be counted.  And what with fulfillment of ILL requests via PDFs today, some libraries and archives are thinking of ways to store the scans they’ve made so they can call them up again easily if another request is made for the same item.  Would libraries and archives still be protected under CONTU’s guidelines if they went that route?  What would separate them from the “institutions that serve the specific purpose of supplying photocopies of copyrighted material”?  Incidentally, would aggregators and online providers today that offer full-text be outside the provisions of CONTU then?  Has there been an updated version of CONTU?

I was really glad to learn of the CONFU proceedings and the guidelines (what are now more trendily called “statements of best practices”) that they developed even if they were not approved.  I had no idea that there were such precedents to the work on best practices statements that has been raising a furor of late.  A question that has come up in my work on the MLA Legislation Committee’s Best Practices Subcommittee is how much a statement of best practices should reflect majority practice and how much it should also incorporate recommendations from select copyright experts.  In other words, how do you define “best”?  I wonder how much of the CONFU drafts eventually informed the best practices statements recently published by the Dance Heritage Coalition on dance-related materials: http://www.centerforsocialmedia.org/fair-use/related-materials/codes/best-practices-fair-use-dance-related-materials.

I pretty much burned out reading about the ProCD vs. Zeidenberg case (that’s where my study session ended on Tuesday) but it was worth it.  I like to pore over the details.  Anyway, I was very skeptical about its conclusion, which read: “But whether a particular license is generous or restrictive, a simple two-party contract is not ‘equivalent to any of the exclusive rights within the general scope of copyright’ and therefore may be enforced.”  My question is: even if it is not equivalent, does it subvert?

In this case, the authors seem to be drawing upon strict grammatical analysis (which I guess is common in interpreting laws, but nevertheless…) to say that a two-party contract can never be the same thing as a federal law JUST CUZ two people are not a whole country.  Am I missing something here?  Because it sounds to me like that’s their argument.  Even though the contract under discussion (the end-user license) does indeed cover the same ground as the rights conferred under copyright, they’re saying that copyright law should not pre-empt the private contract because the private contract concerns 2 people, not the whole country, and therefore is a totally separate thing from copyright, which is federal.  What?!  I mean, seriously.

So now I sound like I’m defending the court’s decision to let Zeidenberg off the hook, but I’m not.  For one, I agree with the authors that there is something iffy about the court’s decision to judge this case against copyright law just because copyright covers anything “fixed in a tangible medium of expression.”  It would be a very weird world if copyright law trumped contracts in every situation involving something “fixed in a tangible medium of expression,” as the authors do a good job pointing out.  This whole sticky point made me realize now why I came across so many law articles trying to define what an “author” was when I was researching for my paper in the spring.  Copyright law does not say that it covers anything fixed in a tangible medium of expression; rather, it protects “original works of authorship [italics mine] fixed in any tangible medium…”.  But, having read some of those articles arguing over what an “author” is, I’m not sure that’s going to get us anywhere fast either.  Probably nothing will get us anywhere fast.  Some legal scholars, e.g. Jane Ginsburg and her fans, were convinced that getting back to “authorship” is what will get us on track with copyright legislation.  But I am intrigued by the recent idea raised by our prof Kristin Eschenfelder in class–that perhaps we should be working towards a larger “information policy” rather than focusing on copyright, which should only be one part of a government’s information policy but is currently taking up the whole spotlight.

Anyway, my final point about ProCD vs. Zeidenberg is that I had a nagging suspicion in the back of my head that, surely, there must have been some other bit of legislation that ProCD’s lawyers could have used to make their case.  I really don’t think that the contract-vs.-copyright dichotomy was really what was at stake here, but I am not a law student so I don’t have an answer to that.  In any case, the revising of the UCC will take care of half the problem here, which was the court’s decision that a shrink-wrap license was not a real contract.  That part–the making so that shrink-wrap licenses are legit contracts–I can jive with.  But the court’s argument that the license would be pre-empted by copyright law anyway even if it were a legit contract–that’s weird.  It was interesting to me, however, that this bucked the trend of courts tending to respect private contracts.  Are things trending the other way now?  i.e. towards respecting federal pre-emptions instead?  If so, how did that transition come about?  And would this be a good thing for those who are agitating for a broader information policy?  My guess would be yes, seeing as the more that individual parties see federal law impacting their interactions with information, the more they might want to (a) have a clear and good set of information policies and (b) be interested in being part of the process?

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