Some Good Copyright Mojo:

The Center for Social Media recently released what it calls a "Code of Best Practices in Fair Use" that, in its words, "clarifies the fair use of copyrighted materials for teaching and learning, putting an end to copyright confusion for educators." That's a bit hyperbolic -- but it is a very interesting, and very well-put-together, document that's both (a) a terrific summary of the law of fair use, and (b) an excellent set of principles, or rules of thumb, to guide those who are using copyrighted material in educational contexts about when they can (or can't) assert that they're making "fair use" of that material.

There's something of a "political" slant to this, it should be noted. The document is, explicitly, trying to arm educators so that they will assert their fair use privileges, more vigorously than they have done in the past, all as part of a campaign to re-invigorate the doctrine. [James Boyle's new book, "The Public Domain" -- which I haven't yet read, but which I suspect (knowing Boyle's other work) is well worth reading and which is on my nightstand -- and Larry Lessig's "Remix" are both part of this movement as well]. Over the last decade or so, probably largely as a result of well-publicized lawsuits by the RIAA and others, lots of institutions, including educational institutions, have become terrified of the prospect of being targeted in a copyright infringement suit, and have adopted policies that are timid (or worse) in regard to the use and re-use of copyrighted material in the classroom or in the general scholarly or educational endeavour, and this little document is designed -- well-designed, imho -- to reverse that trend. Worth a look, if you've ever found yourself concerned about using copyrighted material in your teaching or writing.

Thanks. Good to see a readily available explanation of fair use.

Along those lines, but more broadly focused upon libraries and instructional use, Prof. Laura N. Gasaway at UNC has authored a slew of informative web pages, articles and books over many years.
12.4.2008 1:08pm
Marc :
thank you -- it's quite helpful. does anyone know about the difference between material (e.g. copyrighted audio) posted behind a password vs no password and if there is a difference between non-downloadable streaming and downloadable clips (though i understand there are workarounds for most anything on the web....)
12.4.2008 1:30pm
You forgot to mention the Center for Social Media is part of the School of Communications at the American University in Washington, D.C. I thought CSM was an interst group and was plesently surpised to find it is a center at my alma mater.
12.4.2008 1:58pm
einhverfr (mail) (www):
Marc-- IANAL, but I deal with copyright issues as a software engineer all the time. I don't think either of your questions have nearly enough info to address them, however.

What do you mean by "behind a password?" Depending on what you mean, it might run into the DMCA access control clause. It might not, however.

I don't think that streaming is relevant regarding fair use, though.
12.4.2008 2:03pm
Chris Newman (mail):
Marc: If what you're asking is whether you can safely (i.e., without fear of liability) circumvent DRM measures (such as password protection or controls that seek to prevent copying as opposed to streaming) in order to engage in some end use that would qualify as a fair use, the answer is no. The anti-circumvention provisions of 17 USC 1201 create a cause of action separate from that of copyright infringement, and while fair use is a defense to infringement, it is not generally speaking a defense to prohibited circumvention. With regard to at least some educational uses, however, the Copyright Office has designated certain areas as safe harbors for legal circumvention, such as film teachers who want to make compilations of clips for use in class. These are very specific exceptions, however, and you cannot extrapolate beyond them without risk of liability.
12.4.2008 2:41pm
12.4.2008 3:12pm
I'm mixed about the "Code of Best Practices." It's certainly a well researched document. But quite frankly, it looks dangerous to me. Take this for instance:

Truth: If your school system's rules let you do everything you need to do, you certainly don't need this code. But if you need to exercise your fair use rights to get your work done well, in ways that your system's rules don't foresee, that's a different story. In that case, the code may help you to change the rules! Many school policies are based on so-called negotiated fair use guidelines, as discussed above. In their implementation of those guidelines, systems tend to confuse a limited "safe harbor" zone of absolute security with the entire range of possibility that fair use makes available.

With litigation costs as they are, how can anyone give this advice? I don't think many schools confuse absolute security with fair use. The problem is: if a school gets sued for using a work they lose, regardless of whether their use of a work would likely fall within fair-use.

This is an advocacy document cloaked as being informational. And while educators may be unlikely targets for copyright suits given the political ramifications, they're certainly not immune.
12.4.2008 3:12pm
The publication in PDF format can be downloaded at

Personally, I am a bit suspicious when Acknowledgements read much like an "EFF Party", and the initial chapter launches into a discussion about a sandwich patent. Using what virtually all would acknowledge is an extreme case is hardly a good start.

Fortunately, it does not degenerate into the Boldrin and Levine tome "Against Monopoly" (or a title to that effect), though I must admit that yet another reference to Mr. Jefferson's letter about "tapirs (sp?)" is becoming a bit tedious.
12.4.2008 3:16pm
Justin Levine:
There is nothing wrong with fair use literature having a "political" or advocacy slant to it, since most other copyright literature purporting to "objectively" explain copyright law tends to really be advocacy for draconian interpretations of copyright restrictions that essentially ignore or minimize fair use exceptions. Remember Prof. Volokh's own memorable run in with "Captain Copyright" from the Canadian authorities trying to "explain" copyright to us? Tell me that wasn't "political"....
12.4.2008 3:46pm
MCM (mail):
aerbhsbfgr, you're right, but there are school systems and universities with truly absurd copyright policies. I have seen colleagues required to submit their syllabi for "copyright auditing", and then be asked to seek permission for works that are obviously in the public domain.

And, of course, you can find a publishing company willing to assert rights to a work that has been in the public domain for centuries. Litigation costs are expensive, and a successful defense gets you nothing back. But if you don't fight now, you're paying tribute forever.
12.4.2008 4:17pm
einhverfr (mail) (www):
MCM, and of course you note, that when the first Mickey Mouse movie comes back up for public domain, there will be an intense lobbying effort to make sure that terms are extended again, and again, and again.

I think that if they do get extended retroactively again, I will fully support revisiting Eldred v. Ashcroft....

A lot of the problem is a hostility on the part of publishers etc. to both fair use and the public domain. I hope this PDF helps push things back a bit.
12.4.2008 4:39pm
Sean O'Hara (mail) (www):

And, of course, you can find a publishing company willing to assert rights to a work that has been in the public domain for centuries.

If the publisher can claim that they made significant enough changes to the text -- eliminating long-S's, standardizing spelling and punctuation, etc. -- they have a case for that. I'm working on a project to translate Middle English literature for Project Gutenberg, and it's difficult of find copies where it's clear no introduced copyrightable alterations to the text.

With more recent works that have fallen into the public domain through lack of renewal, publishers often don't know the copyright status -- it's too expensive to clear each work individually, so they buy rights to all the author's works as a bloc, knowing that some might be PD.

There was an incident several years ago when Project Gutenberg began putting up Andre Norton's early novels, and her publisher tried to stop them, not realizing that she hadn't renewed the copyrights.
12.4.2008 5:20pm
einhverfr (mail) (www):
Sean O'Hara:

I would think that if you are translating from Middle English, things like normalized spellings would not be meaningful to your final product. Since these things don't get in within any meaningful context, I would think that an AFC test would render them irrelevent.

It gets more difficult when PD works are reworked to some extent for readability. But I don't see people rephrasing Chaucer's works (and other Middle English works) so much as normalizing spellings and the like.
12.4.2008 5:33pm

And, of course, you can find a publishing company willing to assert rights to a work that has been in the public domain for centuries. Litigation costs are expensive, and a successful defense gets you nothing back. But if you don't fight now, you're paying tribute forever.

MCM, I think we're largely in agreement. I'd love to see more companies commit money to fighting back the tide of shakedown copyright suits. But that's not what is at issue here.

Fair use -- regardless of whether it's still alive as a legal construct -- doesn't exist as a practical defense that you can assert to escape liability without first spending a boatload of money on attorneys' fees. And, if an organization is going to put together a "how to" paper on the topic, I'd advise them to tell the whole unflattering truth, so as to not reek havoc with peoples' lives.
12.4.2008 6:11pm
aerbhsbfgr wrote: "And, if an organization is going to put together a 'how to' paper on the topic, I'd advise them to tell the whole unflattering truth, so as to not reek havoc with peoples' lives."

Right. Because getting sued stinks.
12.4.2008 6:17pm
MCM: Attorney's fees should be awarded to the prevailing party in a copyright case basically as a matter of course. The defendants in the RIAA file-sharing cases are starting to make some headway with this argument.
12.4.2008 11:29pm
To somewhat hijack this thread, has anybody seen this story on the De Beers spoof ad.

As I recall, some similar (to me) parody of the MasterCard 'priceless' campaign was held to be fair use. And the NYT itself had backed off on its legal attacks on a spoof site (though without a trial). (1) Do you view this as similar? (2) Does it matter?
12.5.2008 8:14am
einhverfr (mail) (www):
Sean O'Hara:

If the publisher can claim that they made significant enough changes to the text -- eliminating long-S's, standardizing spelling and punctuation, etc. -- they have a case for that.

I am not a lawyer, but I believe that copyright only protects expressive elements. Correcting typos, standardizing spelling, changing typography, etc. might seem to my mind to fail a de minimis test (i.e. these are largely functional and not expressive changes).

So here is an example of a copyright-worthy salad recipe:

One head of lettuce, cut long, washed, and dried
Three small tomatoes, sliced thrice lengthwise
One sprig of mint, chopped fine, and untied
two-inch cuke piece, cut the size of peas

Mix with salt and mix and mix
toss with pepper, toss and toss
dress with oil, serve and fix!

However, if I take that and convert it to:
One small head of lettuce.
Three small tomatoes
One sprig of mint
2-in section of cucumber

Wash lettuce, dry, and slice lengthwise
Trim stem core from tomatoes, and slice three times
Chop mint finely.
Dice cucumber to 1/3 inch pieces.

Mix in a large bowl with salt and pepper. Dress with oil.

The latter would not necessarily be infringing or even particularly copyright-worthy (recipes themselves are not protected, though poetry in the form of a recipe would).

I am therefore to conclude that standardization of spellings, typographical changes, and the like would not introduce expressive elements into the text sufficient to render it protected. However, in a compiled or collected work, the selection and ordering of the works might be.*

*Absent entirely functional selection and ordering. I don't think you could create a complete works of Plato (in the original Hellenic Greek to avoid copyright protection for this argument), order them alphabetically, and then claim copyright protection for the "selection" (i.e. selected all of them) and "ordering" (which was entirely functional).
12.8.2008 4:51pm

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