Jonathan Band Explains Recent Internet Archive Injunction

36m · ©hat · 22 Aug 10:50

Read the Internet Archive Injunction Order here. Sara: Welcome to another episode of copyright chat. It's been a minute I've been on Sabbatical. I've been traveling to Geneva, working at the World intellectual property organization on some research. So, welcome back, we have a very exciting episode talking about the Internet Archive litigation with Jonathan Band from policy bandwidth. He is a renowned lawyer in intellectual property and policy out of Washington, DC. His views are his own. Nothing in this podcast, should be taken as legal advice, of course. But welcome, Jonathan. Jonathan: Thanks for having me. Sara: I would think, since this litigation has been pending for quite some time that most of our listeners are familiar with it. But we can go through a little bit of background. So the Internet Archive was sued by authors and publishers, because, largely as I understand it, because of the emergency lending during Covid. Is that your understanding, too? I mean, that's what prompted the suit Jonathan: The suit initially was filed right after the Internet Archive announced the National Emergency Library early in the pandemic. But very quickly, as you know, with the pleadings and sort of look looking at where the decision ended up. The decision hardly focused on the National Emergency Library at all that just got a paragraph in the decision. It was really focusing on the controlled digital lending under the Internet archives open library. So it could be that that the National Emergency Library is what really got the publishers’ attention and that's what prompted the filing of the lawsuit. But the case ended up being about the open library more generally. And what's interesting about that is that that was not new. I mean, the Internet Archive has been doing, lending through the open library for a while. So you know I'm sure at some point in the future we'll sort of look back and try to figure out. You know why. what prompted it, and why and why did they not sue about the open library earlier? But that's, you know, not completely relevant to today's discussion. Sara: Yeah, I also think that's interesting, because my own take on it, maybe not accurate, but my own take on it was that the authors got mad because they were. They kind of. They kind of went a little excessive, I guess, in the emergency library, saying, Well, we're gonna lend more than maybe one to one. Well, and they claimed usually to be lending older books. Maybe 5 years past publication date, but they threw a few newer books in there by mistake. I understand it was kind of not intentional on behalf of Internet Archive, and that was what kind of perked the ears up of the authors and the publishers. But yes, I mean, the case is broader than just the emergency. Library, which I think is important, because some libraries such as my own, were engaging in controlled digital lending through the Hathi Trust during covid, because we couldn't let people in the doors. We had a pretty justifiable, I think, reason, and the fact that they brought in this lawsuit up probably made it harder on the side of the Internet Archive to justify what they were doing. I don't know. Maybe that's my own, my own conclusion there. But the outcome, as we know which recently happened, was an injunction that told the Internet Archive, as far as I understand it, to stop doing CDL. Essentially, for now. Jonathan: right well, it's a little more. Let's fine tune that a bit. So first of all, what happened is, you know, the lawsuit was initially filed back in 2020 when the National Emergency Library was opened. And then again, as I said, it sort of morphed into this focus on controlled digital lending by the open library. More generally. The judge issued a decision in in March of this year. So March 2023, basically saying that the open libraries controlled digital lending with respect to 127 books at issue in the case. So that was the 127 books identified by the publishers hashed, and the other publishers involved in the litigation. You know that that it was not fair use for Internet Archive to distribute those titles through its open lending. It's open library project in a controlled digital lending manner. Then the court said, Okay, now, parties, you figure out what happens next in this litigation, how we should proceed, what the order would excuse me, what remedies should look like and conceivably there could have been an additional a trial over damages there could have been a trial over saying, you know, or what about other books beyond these 127. But instead, what happened is, the parties started talking to each other, and they negotiated. And they basically they were negotiating, negotiating the judge. You know, the judge initially wanted them to, you know, come back with a proposal within a couple of weeks, and they kept on asking for an extension, and the judge gave them extension after extension after extension, and finally, a. At the end of July, the judge said, no more. You guys decide. You know you have to do something within 2 weeks, or else you know, I'm gonna do it. And so then within 2 weeks the parties came up with a proposed injunction. So they basically came up with a draft injunction, a proposed injunction that the court then approved. Now the injunction, basically said that Internet Archive and its partners, which include some libraries that were working with the Internet Archive would no longer reproduce or distribute covered books, and we'll get back to that in a minute. Covered books through the open library. And then the question became. What is the meaning of the term covered books. and that's where the parties had a disagreement, and presumably that's what's been. Why, there was all this delay, you know. It could be that they agreed pretty much early on on most of the contours of the injunction, but that they couldn't agree on covered books and covered books. The Internet Archive said covered books should just be books by these publishers issued by these publishers that are available in ebook form. Yeah, you know, sort of commercially through overdrive or through Amazon, kindle, but they have to be again available in ebook form. The publishers, on the other hand, were saying, No, no, no! Covered books should be any book that we publish or have published. You know I don't think there was. I don't think they were saying it necessarily needs to be in print. I figured I don't 100% remember. But it basically, the issue is, is it ebooks which are sort of currently available or books, general and so they submitted that question to the judge and the judge very quickly. Within a day, or actually over a weekend, the judge said, Okay, covered books means ebooks. Because you know what the Internet Archive argued, is, that this whole case has been about ebooks, and the fact that you know, the publisher said. It's not fair use because we are selling these ebooks. We're making these available now in ebook form, and the open library competes directly with the ebook market. So the case is about ebooks. And so, and the judge agreed that this case was all about ebooks and the harm to the ebook market. And you know, because that's what the case was about. The injunction can't be any broader than that. Can't talk about books generally. And so the injunction covers ebooks. But interestingly, it's not just this 100 727 titles. It's sort of any book that these publishers publish in ebook format. And they're supposed to provide Internet Archive a list of their titles. And they will. And then the Internet Archive is supposed to pull those out of the open library. It doesn't seem that it has to be titles that are now available in ebook. It could be if the publishers make other titles available in ebook sort of like their backlist. That's currently not ebook that they can make them available as ebooks. And at that point, Internet Archive needs to pull those out. Even though this injunction just covers these publishers, there is sort of like the side letter where the Internet Archive. I don't know if that side letter has been made available. But, the way it's been described is that in in in press releases is that other members of the Association of American Publishers who sort of like were behind this litigation if they want to sort of opt into this deal. They can do that, too. And I'm not 100% sure but what the you know to what extent the Internet Archive is committed, but it's sort of like if they don't do it, then they'll get sued, and you know they would have to do it, at least again, with respect to the ebooks. So that's that's the the basic framework of the injunction. Sara: Yeah. So for those folks listening who are not lawyers. Injunction really means stop. You are being ordered to stop doing this. If you don't. If you violate that I'm assuming you're gonna get damages imposed against you. Jonathan: Well, yeah, yeah, you'd be right. You'd be held in contempt. And in this case, yeah, damage. Or you know, you'd be fines would be imposed. You know. I suppose if it's sometimes with criminal contempt, you could go to jail, but I don't think that would happen here. There's no reason to believe that Internet Archive won't just comply. And you know, pull those titles. Yeah. Sara: And also, as you pointed out, the one important factor is, it's a consent injunction. So you know, the parties did agree to this injunction. Then the judge signed off on it. So yes, I don't think there's any. There would be no reason they would be doing it intentionally. There might be an accidental thing that happens. So you answered a lot of the questions like, I think this gives the publishers an incentive to start making more ebooks, would you think. Jonathan: Yes. In in theory it you know, some of their back list that is currently not available in ebook format. They might make available. But there's also the question as to why they haven't done that till this point. It could be that th

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Jonathan Band Explains Recent Internet Archive Injunction

New Transformative Fair Use Decision in Warhol

To read the full opinion, see https://www.supremecourt.gov/opinions/22pdf/21-869_87ad.pdf Hello. And welcome to a special edition of Copyright Chat. Today, I wanted to update everyone on the most recent, exciting decision from the Supreme Court that is relevant to fair use. As you know from listening to previous episodes of Copyright Chat the Warhol decision from the Second Circuit Court of Appeals was appealed to the Supreme Court. And very recently, there was a decision on May 18, 2023. So just a spoiler alert. For those of you who don't want to listen to this entire episode. The case was upheld. It was affirmed by the Supreme Court. The Court found that the purpose and character under the first factor of fair use. Warhol's use of Goldsmith's photograph was not a fair use. And that was the holding of the case affirming the Second circuit court of appeals. For those of you who want additional details, just as a reminder, this case centered around Warhol using a photograph of the late great singer Prince. It was Goldsmith's photograph that she took for Conde Nast. She took and then licensed the photograph originally to Conde Nast for an artist reference. She was paid $400 for that artist reference and the artist was Warhol. That first use was actually permissible under license, but then Warhol took the photograph and made another series out of it. And then he licensed one of those prints back to the magazine and was paid $10,000. Now that particular use was not condoned by Goldsmith who then sued and the court had found at the lowest level that it was a fair use. It was reversed and then the Supreme Court also found it was not a fair use. Why? Well, the court noted that just because you add a new purpose or meaning or message under the first factor of fair use is not in and of itself enough. You have to consider the degree to which your new meaning or message changes the original work. You also need to take into consideration whether you are making the work commercial. Now, the court does note helpfully and correctly that commercialism is not the be all end all of the first factor simply because it's commercial. We know this. That does not mean it's not a fair use, but. The court does point out many cases where works have been borrowed and they've been changed even quite substantially and still it is considered a derivative use. The classic example is someone taking a book and turning it into a movie. Of course the movie has new meanings, new messages, many things might be changed. But we still consider that a classic example of a derivative work and not a fair use. The reason that they found this particular instance not to be a fair use was mainly because the work at issue here, which is a photograph of Prince, had itself been licensed to a magazine. And that was clearly one of the uses of those photographs. So therefore it was eating into the market of the photographer when Warhol used that same image as a basis for his derivative work and sold it to a magazine. How will this impact? Future analyses of fair use and how might this impact libraries. The good news is that it really doesn't change fair use law. What the Court does here is just clarify things and kind of lay out the differences between fair uses and derivative works, which is always an issue for courts below. One thing I think to think through though in light of this decision is that not every new meaning or message that you can add to work means that it is a transformative fair use.You must consider the degree to which you are changing the work and also whether it is displacing the market value for the original or a commercial. I think these things were always things we considered, but I think the court lays it out a little more clearly. How will this impact libraries? I think luckily the answer is not much. You know these works were being used in the same market there they were both creative works they were both artistic works and In libraries, we're often using works for non-commercial purposes and for research and for, other types of uses. And so I do think that the good news is that, this doesn't change the law a whole lot. It, clarifies the law a little bit, but there's really nothing too negative that comes out of this case and I think that that is the silver lining. It is not a bad idea to read the case, especially if you're interested in fair use and particularly transformative fair use because it does a really great job of clarifying, you know, the difference between a derivative work and a transformative fair use. And I think that that is one of the 1 million dollar questions I usually get on teaching fair use to students. Is where is the line between a transformative use and a derivative work? And so I think that this is a good case to read. I think it's a good case to try to understand if you care and are trying to apply transformative fair use to your work and are trying to apply transformative fair use to your works. But I think in terms of libraries and those who are. But I think in terms of libraries and those who are using, works for research, education, non-commercial I don't think it's gonna change our fair use analysis in a huge way. So I think that that is the real. Bottom line, I think, folks should definitely read the case for themselves. I think that they should, certainly build on the analysis here and feel comfortable. If they are adding something new in a different way and also maybe critiquing the work or using it for research or using it for educational purposes then those are good, classic fair uses that are not really changed by this case. And, otherwise I think, it's just a great thing to have some more clarity on the difference between transformative uses and derivative works. So I hope you found this useful. I do encourage you to read the case for yourself. See if you can find other nuggets of wisdom from, Justice Sotomayor's opinion here. But in general, there's nothing to different or new that comes out of this case. And I think that it is not going to change our practices at the university and research level too much. I'm glad you were here. Thanks for listening. I hope to see you again. Alright, bye bye.

Celebrating 10 Years of Fair Use Week with Sandra Enimil

To read Sandra Enimil’s Blog from Harvard’s celebration of Fair Use Week that is referenced in this podcast episode, go here: https://blogs.harvard.edu/copyrightosc/2023/02/22/fair-use-week-2023-10th-anniversary-day-three-with-guest-expert-sandra-aya-enimil/ Sara: So, welcome. This is a live version of the copyright chat with Sandra Enimil from Yale University Library. We are here, and celebrating Fair Use Week. Welcome. Sandra: Da, da! That's the trumpet sounding. Sara: Very exciting. It's the tenth anniversary of Fair Use Week. I'm super excited, and I'm even more jazzed because we have a pending Supreme Court case. Sandra: Very exciting! Sara: Tell us about it. Tell us what you think about it. What do you think about it? Sandra: Alright! So the case is Warhol v. Goldsmith, and it is a very exciting case, I mean. There's the thing of there being, two artists, you know, who are being, you know, not being pit, but they are pit against each other, and a third artist, you know, is the subject of the photograph of which you know one of them, you know made it. I think it's a really very beautiful photo of Prince. And then it became an Andy Warhol—Andy Warhol treated series of full of photographs and paintings, and whatever. The original photographer, Lynn Goldsmith, then, you know, finds out that you know this image has been “Warholized” basically. And you know, contacts of Warhol Foundation to say, this is my image using my image. What's going on? Nobody's asked for permission. Nobody has a license, and the Warhol Foundation says it's fair use. Actually, we're gonna go to court and get the court to say that it's fair use. We're just, you know, you know. You go away. Goldsmith does not go away, and she, you know it, you know, pursues it. And now we're at the Supreme Court waiting to see, like what the court is gonna say about is this fair use? You know we heard, I think, at in the hearing, the oral arguments we heard, you know, transformative being tossed around. We heard questions about why this particular image? Why didn't Warhol, you know, take his own image. Interestingly, you know, we don't hear anything about Vanity Fair, who they license the image, and then they just gave it to Warhol and said, Hey, do your thing with this and he didn't like not even mention anymore. That is like, so how that works. Okay? They license it right? Sara: That's an interesting point, because they licensed it for the 1985 version. Sandra: Right, right. Sara: They knew they didn't have another license, but you know we know why, right? It's the deep pockets, and they're going for the deep pockets and Warhol made all the money off of it right? Sandra: Like, who is right, who has a deep pocket? Right? Yeah, Warhol made all the money. Sara: Not Vanity Fair. Sandra: Warhol made all the money. Yeah, yeah. So yeah. Sandra: So you know I and I still like it not even sure how I feel about the whole thing. I am, you know, really kind of like is, this is, is, is it not? Is it fair? Is it, you know, like thinking a lot about it? And I, it's actually it's like this, I'm going into a tangent. So apologies. But Kyle Courtney host, the Harvard's that has a fair use blog for on Harvard's system, and you know, every year he asks folks to write something about fair use and I was just like kind of struggling with what I wanted to write about and decided, okay, I'm gonna write about this case. But kind of not really. So writing about something that's real tangential. Again, and it's about the use of likeness. So it's about it's basically about Prince. It's about subjects and photos, and they're people's ability to say, yes. So certain things happening with images that you know contain their likeness and then I'm gonna find a way to loop that back around the fair use at some point tonight, while I'm you know, finishing it up and crying. You know as you do as a forget procrastinator. But I just you know I've just been thinking a little about that about the use of his likeness, and how this is the set. It's the center of the dispute, but he's not really even part of it. Much like Vanity Fair. Like he's not even part of this, I mean the considerations around him is not really a part of it. Sara: Yeah. The part where I saw him come into it the most frankly was during the oral argument, where there were weird ways, one where people were joking about whether they, the Supreme Court justices, listened to Prince. Like what? And then also because one of the arguments about the transformative nature of the work was that the original photograph was supposed to be vulnerable right, and that the new photo by Warhol was meant to like be like pop culture and like commercialism and all this. So that was like the transformativeness arguably. Sandra: Right and that's what the you know. So his side is trying to try to make that argument of that. They needed this photo. They need because it's an early photo of him. And they needed to use that, because, of course, the common is like, why can't you use to use anything else or take up another photo of him? Or you know as Warhol has done in the past. He's taken his own photos, and then, you know, done his. The extra process that he does to things, or paid for licenses, which he's also done before. And so they're like, well, why this photo? Because you could have done anything else. And so that, yeah, that was their response was that it had to be this one because of the reasoning of the original, and how it looked and presented. Sara: But I, okay, I I know you're presenting it, as this is what they're arguing. Sandra: That's what they're arguing. Sara: But like the extent that they made the comparison, I really bought this comparison, which was they made the comparison to this Campbell soup cans right and saying like, Oh, well, why do you do it? Of Campbell's soup. He could have done it for Cheerios. He could have done it. It's like, yeah. But he wanted to do that brand, because that was the brand that was like comfort comforting like, you see, it. And you're like your kids sick, and you gotta buy them like the Campbell’s soup right? Sandra: Yeah. Sara: And like that was the that was what he was going for, and same thing like he could have gone for another image could have gone for another artist. Sandra: Yeah. Yes. Sara: But he didn't want to. This is what he was doing. And like also, are we seriously going to start telling artists like Warhol? Which brand they should critique like a you know what I mean like it's I don't know like I'm not. I don't wanna be in that business. Sandra: I don't know. So the thing that's like awful, you know, I cause I like, I said. I have been all over the place with this, too, and like listening to a bunch of different commentary about it. And I'm just like, you know, Warhol and Goldsmith. They're both white, but one is a woman, and one is a man, and I like thinking about like the dynamics of that. You know that he feels like he could just take this thing from her there, you know I'm you know. That's in there and then also, like, you know, Prince, like I said, he's just he's just there, kinda you know, like he's not, you know, not even getting like the prints like it's Prince kind of thing. It's just he's just there, you know, as the black artist, you know. So I just I don't know. I have like so many things that are circling around in my brain, rattling around. Sara: I like that. Our, I mean, I hadn't thought of that point of like the gendered point, and also the fact that, like, you know, she really didn't get it paid a lot right. Sandra: No Nope. She didn't get paid. She didn't get paid a lot, and then it's like when she goes to say, Hey, what's happening here? There isn't like, Okay, maybe. Or maybe there was I don't know we don't know about. I don't know that, you know. They didn't offer her something. Maybe they did. But you know what we know from like the filings that they came and said, we want the court to tell us that what we did was okay. And I'm just like I don't know. I'm kind of struggling with that, you know. Sara: But that's where. Okay, yes, but that's how every good, fair use case happens, isn't it? I mean, like. Sandra: You know, I know I'm on pins and needles and like know how it, how it, how it's gonna end up right? You know. Sara: Well, I also wonder. And I really, really do wonder this, how it could or would impact libraries at all. And I said this about the second circuit opinion, where they said, like, you can't change art into art. That's not transformative and my response to that is well, you know, libraries aren't really in the business of making art so. But if they start making new transformative decisions, right decisions about the purpose and character that could impact us a lot. So it depends on what they have to say. Right? I'm back to. It depends. Sandra: I mean, I think, like the how we sometimes get stuck with transformation is like, we think it has to be like a whole new thing. And I think for a lot of the work that we do. You know. Obviously, it's not everything, but for a lot of it. It's not transformative. It's like kind of working in the same direction as the original thing. But you know we have a smaller audience, or we're only using this. A portion of it, you know there are a number of other things that really help us if we don't have that transformative piece of it from the first factor. But yeah, I also don't know how it will impact us. We're not alone in that. I think in a lot of the amicus briefs that kinda went around, you know, at least from the library perspective. It was like, we're just concerned. We don't. We're not saying which way to go, but you know we're watching. Sara: Yeah, it's kinda like, do no harm right like, do no harm. Supreme Court like you c

Pia Hunter Explains Warhol Supreme Court Oral Arguments

You can listen to the oral arguments yourself here: https://www.supremecourt.gov/oral_arguments/audio/2022/21-869 Pia M. Hunter is a Teaching Associate Professor at the University of Illinois College of Law and the Associate Director for Research and Instruction at the college’s Albert E. Jenner Jr. Law Library. She holds a J.D. from the University of Illinois College of Law and a Master of Science from the School of Information Science at the University of Illinois. Prior to joining the law library faculty, she served as Visiting Assistant Professor and Copyright and Reserve Services Librarian at the University of Illinois at Chicago (UIC) where she researched and developed best practices for copyright and fair use for instruction for the UIC campus. In 2013, she led the initiative to create Fair Use Week, an annual celebration that highlights the fair use doctrine and its significance to artists, students, faculty, librarians, journalists, and all users of copyrighted content. Sara: Welcome to a live recorded episode of Copyright Chat today. I am so excited to bring you the wonderful Pia Hunter. Welcome, Pia. Pia: Thank you, Sara. It's a pleasure to be here. Sara: So if you didn't know, Pia is a law librarian at the University of Illinois College of Law and a founder of Fair Use Week. Tell us about that Pia. Pia: Oh, gosh. Fair Use Week is, first of all, it's so wonderful that it's, we're coming up on a 10 year anniversary in February, 2023. I'm truly excited about that, but it is the result of a, a meeting of librarians back in 20 12, 20 13, and we were talking about the significance of fair use and not only how important it is to academics and scholars, but to everyone, to, to artists, to people every day who create content, everyone. And so we were discussing how wonderful it would be to set some time aside each year to acknowledge fair use, why it's significant in our everyday lives, and promote it to everyone so that we can take up the banner and protect this, right? Because I know that it's an affirmative defense in terms of the Copyright Act, but there are things we can do under fair use, and we, we use fair use every day. And so Fair Use Week is designed to promote and, uh, inform people about that. Sara: That is really exciting. I keep forgetting, we're coming up on the 10th anniversary, and this is a really interesting time p to be talking about fair use because as we know, the Supreme Court is addressing transformative fair use right now. Pia: I am, I'm not afraid to admit that I am a bit nervous <laugh> about this case. I Sara: Think I, I think I said that in a nervous tone, <laugh>, Pia: I think you said, I think your tone certainly reflects my, my feelings on the subject. And I'm looking forward to our discussion because a lot's been happening lately. Sara: Yes, a lot has been happening. So if you haven't been paying attention, let's get you up to speed. There is a very exciting case involving the Andy Warhol Foundation and a photographer and the late great singer Prince. So this is a really fun case that is up at the Supreme Court. Of course, it started below and in the lower court, um, the Warhol Foundation had one on its fair use claims where Andy Warhol borrowed, I say borrowed in a nice way. Um, the photograph of this famous photographer who took a photo of Prince, and he originally had, had permission through licensing to use the photo for an inspiration in a magazine article. But later on they, they, he had another reproduction and he did not have permission, and he claimed fair use. And in, in the Second Circuit Court of appeals, they reversed and said, Nope, it was not a fair use. And the issue at the Supreme Court was all about purpose and character of the use and whether it was transformative, which is, oh, scary to me because the last time Supreme Court addressed this was 1994. Pia, tell us some more about kind of what the arguments are on both sides. Pia: Okay. The arguments from the Goldsmith side, that's the original photographer, the artist, is that basically the Warhol Foundation has not produced this content in any way that is transformative. And when we went into oral arguments, there was a great deal of discussion about factor one, what is the purpose and character of the use? And the justices were really clued into fi trying to determine how the photograph was diff different in what ways from the Warhol piece, which is an artistic rendering and has been produced many, many times in several prints and sold over and over again. There's also, and on the Warhol side, they're claiming that it's a transformative use, that even though the commercial purpose of is the same and similar, that Warhol by taking the photograph and creating a painting from it. And from that painting came several other prints that were licensed and sold and so forth and so on, that this is a completely new work. Pia: And the justices seem early on to be pushing back against that because if you look at the photograph and you look at the paintings and the prints and the reproductions, you can s it's obvious that those come directly from the photograph. And this is what's troubling to me because I think for so many years there's been a lot of talk about transformative use in terms of a fair use argument. And quite frankly, I think transformative use has dominated to the fact that it has overshadowed some of the other factors that are just as important. So this case may bring some balance back to looking at all four factors, because if you consider all four factors, then this could very well be a fair use. But if you're basing it solely on whether the, the level of transformative, then we run into, into some difficulties. Sara: That's an interesting perspective. I think, um, I agree with you that on one side they're arguing that, um, it was just the same use, right? So I think that the, the thing that troubled the court here was that on the one hand, this photographer was in the business of licensing her works to, um, vanity Fair and other magazines. And that was the purpose that Andy Warhol also used his work for in this instance. Now, to me though, Andy Warhol in general has very different uses for his works, right? His works hang in many mag in many, um, museums, people come to see his works. They're not only used in magazines. Now, I'm certain that this photographer also could have her work in a fine art museum, but I do think that there are broader uses for a Warhol work. Um, and a lot was brought up about the other Andy Warhol case, the famous soup can case, right? Sara: Where the judges said, oh, well, this is not as hard a case in that instance because the soup cans were used for a different purpose, right? And normally the logo on Campbell's soup cans was used to market the brand. And of course, um, the use by Warhol was to show mass consumerism. Um, one point that the, the, uh, uh, photographers, lawyers made was that he had to have some necessity to use that particular photo. I wonder what you make of that argument, Pial, because the justices seem to be kind of buying into that a little bit. Pia: They did seem to buy into that a little bit. And the necessity argument is one that I find fascinating because it was ne it was necessary to use the Campbell soup can in its entirety, it's, it's it's logo, it's symbol. You look at that automatically and you recognize that it is Campbell's soup. So the necessity argument and Warhol's subsequent series of that discussion sparked a discussion of consumerism. When you, when I look at the Prince photo, I'm a little <laugh>. It's funny, I am such a huge Prince fan that when I look at the Prince photo, I think that it's Prince. So it has to be necessary <laugh>. And I know that's not a legal argument. It's more than mentality, I think for me than anything else. But looking at this, it's, it's, it seems that the justices are buying into that, that philosophy. I'm not sure how sustainable that really is in the long term. Pia: He could have picked any number of photos or images to do that exact same thing. It didn't not necessarily have to be prints, but because it was print, I think that lends itself to the argument about the fourth factor and commercial use and market for the work, because he's doing what is considered a reproduction. And I know that the, uh, Martinez, Mr. Martinez, who's the Warhol's attorney, used the term follow up work. And in my mind, that is the same as a derivative work, which falls to the bundle of rights that is reserved for the owners. So as this goes on, it'll be interesting to note how they, they, they parse out each factor and really examine what's happening in terms of the original content. Is it truly a derivative work? What's the difference between a follow up work and a derivative work? I mean, I think it's, it's a subtle nuance there, if there is a difference at all. And they're gonna have to examine each of these factors closely. So this, this may be something that, that justices appear to embrace now in the early stages, but I think that, that, that may change as time goes on. 1: Yeah, I think that's interesting. And I, I agree with you that one of the cruxes of the, the issue here was what is the line, or where is the line between a derivative work and a transformative work? Although to me, that's always been the question, right? That's always been the million dollar question in these types of cases. It just was made even more salient here because one of the things that they

Jim Neal on ALA Policy Corps and More!

Also check out the ALA Policy Corps as well as the ALA Advocacy website Sara: Welcome to another episode of Copyright Chat. It's been a hot minute sorry about that everybody but today we have a very special guest. We have Jim, Neil. Hi, Jim! Jim: Hi! How are you? Sara: Great! And Jim is the University library in emeritus at Columbia University. He also served as ALA President, and he received 2 awards from the ALA, the highest award on as an honorary member in 2022, as well as the L. Ray Patterson copyright award. Congratulations Jim! Jim: Thanks, Sara. Sara: So, Jim, I just wanted to get started. How did you get involved in copyright, as you're not a lawyer by training. But you've been such an advocate in the copyright field and I'm just curious how you got involved in in the beginning. Jim: Well, it it actually goes way back to the early 1970s. I graduated from Columbia School of Library Service at the end of 1972 and began working as a librarian the following year, and you'll recall this is when a lot of the discussion and debate began to revolve around the updating and modification of the US Copyright Law. And so my early professional career was advanced during this period of time, and I participated in many of the early discussions that led up to the 1976 copyright law. And so I was born in the context of fair use and the context of the exceptions, the limitations that define the ability of libraries to serve their communities. I hung out with copyright in a pretty low level way until the late 1980s, and it was at that time when so much of our work had become automated, and we're beginning to see the early publication of the things that we had historically acquired in print were now becoming available electronically, and of course that would explode in the 1990s. It was also the time that two other things happened. one in the mid-1980s, I'd become very interested in national information policy and my initial plunge into that was in the area of government information: Making sure that the information the Government produced was widely and openly available and accessible. But, in 1990s I also became Dean of University Libraries at Indiana University, and that was at that time that I recognized how important it was for up or major research libraries, and by extension all academic libraries, to play a significant role as new thinking about copyright began to evolve. I worked with the Association of College and Research Libraries. I worked with the Board of ARL, of which I was then a member, to really position us as associations that were part of the national debate around copyright. I also worked with Indiana University to create what I think was the first University library-based copyright advisory office at Indiana University based in Indianapolis and we hired Kenny Crews at that time to run that office. And so I began to meet with groups of librarians around the country, with different boards to develop strategic direction and actions around copyright. And when I made to move from Indiana to Johns Hopkins where we created a similar copyright office. I got a call from Washington asking me if I would be willing to join the US delegation that was going to go off to Geneva to participate in the World Intellectual Property Organization, a diplomatic conference negotiations on copyright, the basic objective being to update the international copyright law to reflect the digital and network environment in which we were operating. So I went off for 3 weeks to Geneva, was an advisor to the US delegation. I tried to get exceptions, limitations, and fair use into the discussion and the debate and that ultimately, of course, led to the adoption of the Digital Millennium Copyright Act in the United States. So that sort of explains the early involvement in participation. Sara: Sounds like it was an adventure beginning with the change to the Copyright Act in 1976 all the way through the Digital Millienium Copyright Act, which, of course, is still debated today. And the library exceptions which we're still trying to get at an international level today, so it's still ongoing. This work never ends, Jim, when is it going to end? Jim: I think it's perpetual. You know we play a lot of defense in the area of copyright not wanting to open up discussions about aspects of the copyright law that really benefit us and enable us to support our communities, but there's been so much effort to strengthen copyright on behalf of the copyright creators, and therefore we've been active in Washington for the last 20 years, trying to prevent unnecessary, inappropriate, and difficult to work with copyright changes coming out of Washington. We've also had to deal with several important initiatives at the State level during that period as well. And I think we generally have been have done okay. We tried to work with the creator community to update section 108 of the copyright law, which is that section which specifically provides the exceptions and limitations for libraries and artists enabling us to do things like inter library loan, and make preservation copies, and copies for users, and so forth. But we did not come out of that 3-year process. I was on the 108 study group. We did not come out of that process with an acceptable plan of action that would enable all interested parties to reopen 108 and make the necessary changes. And so that was an interesting process. and I learned a lot about how copyright works. And who is involved, and what the relationship is between the publishing industry ,the creator industry, and the copyright office in Washington. So we've done, I think, modestly well representing libraries, but there's so much more work to do. Sara: You mentioned the section 108 study, and I do assign that discussion document from the US Copyright office that came out of that study to my students and often they say to me, Professor Benson, why hasn't this happened? What's going on? There's a model law at the end. Why has this not happened? My perspective, and I wonder what your perspective is, is that potentially opening up section 108 could be problematic. Given what happened with some other portions of the Copyright Act, such as the TEACH Act that went South. I mean the TEACH Act is good in theory. If you're, unfamiliar with the TEACH Act it provides online opportunities for educational uses of certain works it's supposed to mirror the face-to-face teaching exception under Section 110(1). It's in section 110(2) of the Act, but unfortunately it became so cumbersome to apply that most universities, including mine, don't really exercise it. And I wonder what your perspective is about opening up section if we were to do that today? Jim: I think it would be very difficult and challenging, and we would put our ability to serve our communities at risk. One of the real important debates within the 3 years of the 108 study group was are digital works covered by exceptions and limitations in copyright? And what is the role and purpose of contracts, licenses that libraries sign with publishers and other creator companies. What rules govern the use of those materials? And I think it's clear from litigation and from legislation that there are really two streams of guidance. One is if it's in print, you're probably going to be able to apply the exceptions and limitations in section 108. If it's in digital form, you're probably going to be mandated to use the provisions of the contract, the license agreement that you sign. The public law of copyright versus the private law of contract. And the problems that I have with that are that it means that I put this in the area of social justice. I always have. If you have good lawyers, if you have a lot of money. If you have influence you have good connections, you're probably going to be able to negotiate a better contract, a more favorable contract, then the smaller instructions that don't have good legal counsel don't have a lot of money, and are gonna just defer to the contract that they sign. To me, that is an issue of social justice and it's on that basis that I fought this from the very beginning. I think we don't want to open one way. It could really create a real risk to our ability to serve our communities. We have seen other initiatives coming out of Washington besides the TEACH Act. We recently went through the crazy CASE Act deliberations, and worked very hard in this provision of creating a small claims court capacity for people to get sued for supposed violations of copyright and making sure that libraries and library staff were exempt from those lawsuits. So I think it's going to be a constant battle, and I think, with a new Congress coming on board in the fall—and we're not quite sure what the political makeup will be of the Congress at this point, but we have we have some thinking about that, will there be new initiatives to upset the balance that we've enjoyed in the copyright arena. We're also seeing more what I would call legal court cases around copyright, than historically, we experienced. And I think what we don't want to happen is that judicial decisions begin to define what copyright is in this country, and I think that's going to be a real challenge going forward. Copyright for most of the American population has been one of those “MEGO” topics—my eyes glaze over. People don't really know what it is or care about it, or know that they should care about it, and we've seen over the last decade or so copyright appearing on the front pages of newspapers and hitting the popular press in the areas of music and film, and art. And so people, I think, are a little bit more aware of copyright. But too of