1. 2012:
A Landmark Year in the U.S. Courts for
Copyright, Fair Use and Higher Education
What Does it All Mean for You in
2013?

2. The Importance of This Program on This Day
CUNY's 12th Annual IT Conference
“Instructional/Information Technology in CUNY:
Disruptions and Developments”
“I have plenty of colleagues who either ignore
copyright laws or are reluctant to use various media out
of fear of copyright laws.”
Tim Forgione, Internet for Educators
http://timforgionecse624.wordpress.com/author/timf
orgione/

3. The Inspiration for the Format of This Program:
A Virtual Presenter
CUNY's 12th Annual IT Conference
“Instructional/Information Technology in CUNY: Disruptions and
Developments”
CALL FOR PROPOSALS:
“We see new prodigies of scale – MOOCs (Massive
Open Online Courses), enterprise-wide plans and
deployments, systems talking to systems. What are
the gains and losses of scaling up thus? As new
configurations emerge, do they only add to the mix
or change it?”

4. • “MOOC Campus, for example, has no subject-specific
professors. Some of the greatest lecturers in the world
have their content available online—we don’t need to
reinvent the wheel.” http://mooccampus.org/2013/05/08/a-school-with-
no-teachers/
• “I’m all for using and repurposing existing resources
whenever possible instead of wasting time and money
reinventing the wheel.” Bob Ridge-Stearn, Head of e-
Learning at Newman University in Birmingham. The
Digital Day
http://thedigitalday.wordpress.com/2013/02/17/oers-p1-
images/

7. The most common lament I hear from participants
when I deliver workshops and presentations on
copyright and fair use law is that what they really
want is a good night’s sleep.
I began teaching in distance education in its
Stone Age. It was 1984. Students received
VHS tapes, handouts, assignments, and
exams through the mail. Due dates were
postmarks. A lot has changed since then.

8. Three Cases (+ One +An Update)
1. Streaming Multi-media & the Rights to Public
Performance
2. Making Printed Materials Available Online for
Courses (Electronic Reserves)
3. (A Two Part Case)
– Making Printed Material Available Online When
Author Cannot Be Located for Permission
– Providing Online Access to Scanned Documents
Both In and Out of Public Domain

9. CASE #1

10. Streaming Multi-media and the Rights to Public Performance
Go to DVD

11. CASE #2

12. Making Printed Materials Available Online for Courses (Electronic Reserves)
Go to DVD

13. CASE #3

15. Making Printed Material Available Online When Author Cannot Be Located for Permission
Go to DVD

16. Providing Online Access to Scanned Documents Both In and Out of Public Domain

17. Late-breaking!
Case #4
The Authors Guild et. al vs. Google Inc.

18. “Siding With Google, Judge Says Book Search Does Not Infringe Copyright”
(New York Times, November 14, 2013)
• “’[Google Books Project] advances the progress of the arts and
sciences, while maintaining respectful consideration for the rights
of authors and other creative individuals.’”
• “’Google’s book search is transformative [and therefore fair
use]….words in books are being used in a way they have not been
used before.’”
• “’Even assuming Google’s principal motivation is profit, the fact is
that Google Books serves several important educational purposes.’”
• “The project benefits librarians, researchers, students, teachers,
scholars, data scientists and underserved populations [such as the
disabled] or those in remote places without libraries.”
• “’In this day and age of online shopping, there can be no doubt that
Google Books improves books sales.’”
• The authors in the suit have filed an appeal.

19. Update – Case #2 (Georgia State)
• Oral arguments were heard at the Eleventh Circuit Court of Appeals on November 19, 2013. These are the
observations of Kevin Smith, Scholarly Communications Officer, Duke University on what was said in court.
• Third Factor: “The publishers want a definitive statement that 1000 words is the absolute maximum for fair use of
their works, but the court was not buying it. On this issue they also gave Steve Schaetzel, representing GSU, a
hard time about Judge Evans’ 10% or one chapter rule, asking if that “bright line” was a legal error (which would
justify reversal or remand) because it removes the flexibility from fair use…. [However] It seems clear [that the
judges] do not want to provide prospective instructions that would remove the flexibility from fair use.”
• Fourth Factor: “One of the judges, Judge Marcus, raised the question of whether Judge Evans had impermissibly
“shifted the burden” on this factor by asking whether publishers offered digital licenses. The general rule is that
defendants (GSU, in this case) have the burden of proving fair use, and lawyers and judges love to watch out for
inappropriate burden shifting. Mr. Rich was quick to agree that this was an error made by Judge Evans, but of
course it is no such thing. She simply ruled on this factor based on facts that were in the record before
her. Specifically, the publishers argued that they were losing licensing income due to the claim of fair use, so she
asked if they were offering licenses. When told that some of the plaintiffs (i.e. Cambridge University Press) were
not, she properly concluded that this factor did not always favor the publishers.
• “Lisa Macklin, the Director of the Scholarly Communications Office at Emory University, who has a smart and
sensible perspective on most issues, reminded us that the problem being fought over in this lawsuit would go
away if the academy would more fully embrace open access. The core problem here is the donation of copyright
in academic works to publishers who then exploit them to earn every possible penny of profit.”
• http://blogs.library.duke.edu/scholcomm/2013/11/20/a-discouraging-day-in-court-for-gsu/#sthash.ki4yjO94.dpuf

20. Thank You!
Kathleen Collins – kcollins@jjay.cuny.edu
Beth Evans – bevans@brooklyn.cuny.edu