he dominant project of cyberlaw is to parse the implications of the Internet's structural rules or "code." n302 Legal scholars seeking to explain the Internet's dynamism as a unified platform have emphasized a particular structural factor: the so-called "end-to-end" model. n303 An end-to-end network is one that pushes control out to the endpoints. n304 The network focuses on moving bits from one place to another, without considering what those bits contain. Any edge device, such as a computer or mobile phone, can add a new application, and those edge devices are solely responsible for factors such as reliability and security that ensure the success of that application. Because innovations do not require the consent or updating of the network core, those innovations can be deployed more quickly.n305 As edge devices become more powerful, which they do as computing power improves over time, their enhancements can immediately be joined to the network. So, new services such as Google, Skype, Hotmail, Facebook, and Amazon.com can catch on and grow rapidly, generating significantly more social and economic benefits than in a network like the PSTN, where central control nodes must approve new features. n306

The end-to-end model emphasizes only one side of the equation - the edges. The Internet gives extraordinary power to its endpoints, but it also embodies linkages between those endpoints, and between  [*400]  aggregations of systems that connect into a composite network. The fact that the edges of the network define the applications say nothing about how those edges are wired together. An endpoint can offer a brilliant innovation, but such innovation will be of no value if other endpoints cannot access it, or cannot access it easily. n307 Something more than the end-to-end principle must explain how the Internet holds together.

Traditionally, librarians have been viewed as gatekeepers (among other things). However, Librarians (for the most part) view themselves as catalysts helping patrons getting the material they want as quickly and as "painlessly" as possible. For most patrons the ideal librarian is one who can find whatever information they need quickly, easily, possibly be able to teach them how to do it themselves, and -- most importantly -- do all of this for free. Most librarians, I assert, want to be the patron's ideal librarian. So, why then are librarians gatekeepers -- shouldn't librarians be ignoring copyright all-together in order to be the ideal librarian? The answer is that most librarians don't feel as if copyright law is some moral code they must abide by; rather, most librarians are afraid their library is going to get sued. Is having one's library being sued a legitimate fear for librarians? I argue that it is not a legitimate fear. In addition, library's and librarians have come to a breaking point in regards to copyright. Library's can barely afford the high prices for copyrighted material and most librarians believe there needs to be a universal embrace of open access in order for libraries to continue providing the services they have historically provided. Librarians need to be rebellious against copyright in order to push publishers away from price-gouging and the strangle-hold they have over their content. If librarians adopt an end-to-end policy, learn to circumvent copyright law as legally as possible, and know how likely it is that their library will be sued, then librarians will finally be taking a truly proactive and rebellious stance against copyright.

The above article is a PR address from the Association of American Publishers regarding the infringement lawsuit brought up on Georgia State University by Oxford University Press, Cambridge University Press and SAGE Publications. The document gives the reasons why these three publishers felt it necessary to bring up charges against GSU and why it is important that the copyright they hold over their published works is important (mainly because of the significant funds they spend publishing their works).

 

http://publishers.org/main/PressCenter/documents/GSUlawsuitcomplaint.pdf

 

The above link directs you to the legal complaint in its original form. Using the above legal cliam and the press release to help decipher and guide me through this legal document will help me to better understand why the publishers feel they have been wronged by Georgia State University. The infringements listed by Georgia State University have most assuredly been facilitated by the library/libraries of GSU or at least exacerbated by the library/libraries.

 

I will use the above article as a way of understanding what was it exactly that publishers feel are significant reasons to bring up suit against an entity. By examining the stated reasons for the lawsuit, I could further research as to what could be done to eliminate the possibility of being sued for supplying copyrighted works to students, faculty, and staff by the university library. The above articles will help me to define in my essay what is sufficient cause for a publisher to take up suit against a university / library.

 

Note: Lexis Nexis doesn't give persistent links (or else I am unable to find where they do) in order to retrieve this article simply search for "a lay perspective on the copyright wars" with only the legal box checkmarked and it will be the first result.

 

 

 

In this Lecture, Columbia University's University Librarian, James G. Neal, addresses the current environment of libraries in regards to copyright and open access. Neal's lecture mostly addresses the findings of the 108 Study Group which was formed to research copyright. Neal explains the current state of copyright, the findings of the 108 Study Group, and the framework necessary in order to facilitate a more open environment for publications and libraries. Neal's lecture defines the library as an all encompassing entity which disseminates information, a center for research, a publisher in its own right. Because of the library's role as a center for just about everything scholarly, the library has a vision of embracing legacy as well as current trends. The library is an information repository and a portal to information. Serving so many roles simultaneously makes the library at the forefront of the copyright war.

 

In my essay it will be important to state why it is the duty of the librarian to rebel against copyright in order to push for more open access. Neal helps define the library as the center of the copyright war, the very front of the action. By citing Neal and his 108 Study Group's findings, I will be able to convey the importance of the librarian to stand up against copyright in order to defend the very embodiment and idea of the library itself. Neal's article also gives information on the opninion of librarians and library organizations on the issue of copyright and open access. Using some of this information will help me to define how to faciliate a better enviornment for the sharing of intellectual materials.

 

U.S. Code Title 17 is the definitive legal resource for the U.S. Laws regardining copyright. This resource has relevant information on what constitutes copyright infringement and what actions are needed to remedy said infringements. 

I will use the above resource as a primary source. This source will help me to define exactly what copyright infringement is according to the law. The above material will help me to define what actions a librarian could take when addressing sensitive copyrighted materials. By knowing the extent of the law I could then determine what are suitable actions to take when coming in contact with something which is questionable -- and in turn what is definitively illegal -- in order to argue for what actions a librarian could take to "push the envelope" on copyright law.

This resource aims to address as many legal aspects of copyright infringement that the site's authors deem are most relevant to instruction and libraries. The site acts as a bibliography or index to various topics within coypright right law and links the user to a main source of information on each specific topic. In addition to linking to various topics on copyright law, it also links to legal information on copyright law and how it pertains to libraries and instruction. Under each section and sub-headings are abstracts explaining what is covered under each topic.

The following resource is an invaluable tool for addressing specific copyright concerns of libraries. After researching what each of the concerns are and making note of them, I will then be able to click through to find out more information on each specific topic. Though likely not a comprehensive source of copyright law which specifically affects libraries, it seems to be fairly wide ranging and well written. 

By Judge Alex Kozinski and Christopher Newman. Published in the Journal of the Copyright Society of the USA, Volume 46, No. 4, Summer 1999, pages 513-530

This article is a speech given by Judge Kozinski, a member of the Ninth Circuit Court of Appeals. While the speech is an overall discussion about the legitimacy of fair use, there is a significant portion devoted towards the idea of satire and parody and its place in fair use.

Kozinski disagrees with Seuss's thought that "The Cat NOT in the Hat!" is an attempt "to avoid the drudgery in working up something fresh." Instead, Kozinski feels that "It’s easy enough to spew a few lines of impromptu Seussian doggerel, but it takes some creativity and work to write a sustained satirical pastiche that people will enjoy enough to pay money for and recommend to their friends."

In general, Kozinski disagrees with the Bisceglia thought that a satirist can just pick a new work to focus on if he cannot acquire a license to the original work. He states:

"Even if the original work is used only as a vehicle, not just any vehicle will get you where you want to go. You can only get so many chuckles by mimicking something familiar. When this kind of satire really works well, it’s because there is something about the original that fits - or pointedly doesn’t fit - the subject"

Kozinski's stance demonstrates a willingness to grant more freedom to satirists. Similar to the Collado article, Kozinski is cognizant of the creative process and is aware that there are not always other options for satirists to choose from to make their point. In fact, Kozinski adds that "the fundamental premise of our copyright law is that the best way to encourage creation of valuable works is to let authors capture the market value of those works." It is the point of satire to create a different view on a well known material, and by restricting it too much, the spirit of copyright law will be broken.

Overall, Kozinski is a strong supporter of more fair use for satire and disagrees with his colleagues of the Ninth Circuit regarding the Seuss case.

By Adriana Collado. Published in Journal of Technology, Law, and Policy, Vol. 9, Issue 1, June 2004.

Collado's article goes through the differences between parody and satire as stated by various court cases. This analysis includes a look into the Campbell and Seuss cases. With regards to the Seuss case, Collado states that the Ninth Circuit "unnecessarily narrowed the Campbell holding and set a precedent inconsistent with the goals of copyright law and with the Campbell decision itself" reaching the same conclusion as the Tushnet article.

Collado then analyzes satire as a fair use and how Seuss was inconsistent with Campbell. Specifically, Collado takes issue with the conclusion that there would be significant market harm from "The Cat NOT in the Hat!" 

"[I]t seems unlikely readers would regard “The Cat NOT in the Hat!” as a substitute for the original, especially since the works target different audiences. While the original Dr. Seuss work is sold in the children’s section of the bookstore, “The Cat NOT in the Hat!” would likely be sold in the adult humor section. Furthermore, the fact “The Cat NOT in the Hat!” was labeled as a parody on its front cover and the author’s name was clearly depicted reduced the possibility readers would confuse or substitute the secondary work for the original."

By Footnote 14 of the Campbell decision (cited above), Collado concludes, there should have been fair use protection for this satire as the potential for market harm was slight.

Collado is a proponent of more freedom for satires. She disagrees with the Bisceglia opinion that satirists can "shop around" for other material if they cannot find a way to make a comment on the original work. Instead, Collado feels that a satirist's ideas are "often intertwined with their underlying source material" and if a satirist must look elsewhere for material, "the idea might not be created at all, thus generating a result...contrary to the goals of copyright law." Finally, Collado argues that satires not only do not displace the market, but could even "increase demand for the copyrighted work" by increasing interest in the original .  

Overall, Collado's article provides a well-reasoned insight into the reasons why satire should be given fuller fair use protection as opposed to the Seuss case.

FISHER V. DEES (794 F.2d 432, 9th Circuit, 1986)

The case of Fisher v. Dees provides an example of the duality of satire and parody. The case was brought by Marvin Fisher and Jack Segal, who created and composed a song called "When Sunny Gets Blue", described by the court as "a romantic and nostalgic ballad". In 1984, Rick Dees, a comedian, contacted Fisher for permission to make a parody of the song for a comedy album. When Fisher declined, Dees went ahead and recorded the song anyway. Fisher sued, and the District Court ruled in favor of Dees. On appeal, the 9th circuit upheld the district court's ruling.

In the ruling, the Court reaffirms the statement made in Elsmere v. National Broadcasting Company with regards to the "conjure up" test. As with Elsmere, the court decided that a parody is entitled to use at least enough material to "conjure up" the original. This concept is quoted again in the

Stephen Speicher discusses YouTube's place in the fair use discussion, and how the debate over YouTube could help and answer the "age-old question: What is fair use?".  He first comments on YouTube's amazing rise to stardom, becoming the number one internet video service just a year after its conception.  Speicher explains that YouTube's success stems mostly from its ability to allow users to post videos and view them.  He also points out that while much of YouTube's traffic comes from views of homemade, legal, amateur content, a large bulk of the videos posted on the site are copyright infringers and, therefore, illegal. 

While many of these videos containing copyrighted content are direct copies and obviously illegal,  many of the videos show short news clips from cable television, sitcom or clips of sporting events and other public gatherings.  These "tightly-edited clips", argues Speicher, can be seen as reporting or educational, and therefore within the limits of fair use.  He uses the example of someone blogging about the officiating in the NBA playoffs, saying that while it would be possible to describe each play in detail and then give the thumbs up or down on the refs call, it would be much more practical just to show the clip of the play itself to illustrate your point.  He also mentions the fact that YouTube is positioning itself to be at the heart of this debate by "distancing themselves" from complete works (The ten minute limit on clips is a good example of this).

This fair use argument, while it isn't YouTube's major defense mechanism (that would be the Safe Harbor provision in the DMCA), can help bolster the case for YouTube as a legitimate company.  If YouTube can convince the courts that these clips are fair use, it would eliminate a significant portion of the clips now considered illegal on the site.  With more legal videos, YouTube can make the Sony argument, saying that their company has substantial non-infringing uses.  This precedent has been in place for twenty years and would put YouTube on very solid legal ground.

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The United States Government provides a detailed website about copyright issues. On this site, find the text of the Copyright Law as well as information from the Federal Government about copyright cases and issues. The website does a good job briefly explaining Fair Use, International Copyright relations, and a number of other issues.