Re: E-Reserves question

[Sandy Thatcher <sandy.thatcher@xxxxxxxxxxxxxxxxxxxx>]

Well, just to offer a different analysis, let me play devil's 
advocate on the other side.

First,a query: isn't ILL a misnomer if the materials "loaned" are not 
returned? A better, truer description would be "document delivery."

On the four factors:
1) Yes, the use is for educational purposes, but that has never been 
determinative of fair use in itself. Is the use of the articles 
"transformative"? Not likely, unless the teacher embeds them in an 
anthology containing lots of the teacher's own linking and contextual 
material. Putting them on a syllabus does not mean the use is 
"transformative."
2) We don't know what these articles are. Perhaps they are from a 
poetry journal. That would count against fair use.
3) The amount used, presumably, is the full article. The original 
post said nothing about assigning excerpts from the articles.  If the 
full articles are assigned, this factor goes against fair use.
4) Impact on the market? Remember that the Texaco, Kinko's, and MDS 
cases all found the existence of licensing services for articles like 
the CCC to be significant factors. Teachers in the MDS case filed 
affidavits testifying that they would not have used the articles if 
fees were charged. That didn't persuade the judges to find the use to 
be fair. Yes, those cases involved commercial companies, and this 
situation just involves a university, like GSU. But I suspect that 
difference is more important for factor 1 than for factor 4 analysis.

I would not want to place a lot of money on betting that the use of 
these 11 articles would be deemed fair use. We'll know more after the 
GSU case is decided.

Sandy Thatcher







At 1:28 PM -0400 9/1/11, Brandon Butler wrote:
> I just want to endorse Chris Holobar's analysis, as well as Kevin Smith's
> second round of devilish advocacy. If each link in the chain of use is
> legitimate, then the whole thing should be legitimate.
>
> 1. If the articles the prof obtained via ILL became his property (and they're
> the result of an otherwise legit ILL process), then the ILL transaction was
> legitimate, and now the prof has all the rights of a legitimate copy owner.
> (And by the way, CONTU and the Rule of 5, as has been said, are not the law.
> Convenient guidance (sometimes) for folks looking for bright lines, but not
> the law.)
>
> 2. Among the rights of a lawful owner of a copy is the right to make fair uses
> of that copy. Among the fair uses he can make, arguably, is making selections
> from the articles available to students on an e-reserves page. The use is for
> teaching, criticism, and commentary (favored purposes in 107); the works are
> likely published and non-fiction (favored types of work for fair use); the
> amounts used are (or can be) tailored to the legitimate purpose (i.e., the
> professor has chosen excerpts relevant to his teaching plan, or has assigned
> whole articles only where appropriate); and the effect on the market (given
> the availability of physical reserves as an unpaid alternative and evidence
> from the GSU trial about professors' unwillingness to assign these works if it
> will incur a charge to students or the library) is little or none. Just like
> ILL, this is a use that fills in the gap where a purchase (either via
> textbook, a course pack, or some other licensed option) doesn't make sense.
>
> I think the original questioner was mainly concerned that the copies might be
> 'tainted' by their origins in ILL. That seems to me to be the easiest worry to
> assuage. Add a robust legal rationale for e-reserves themselves, and you've
> got a pretty defensible choice to make these articles available to students in
> the class.
>
>
> Best,
> Brandon
>
> Brandon Butler | Director of Public Policy Initiatives | Association of
> Research Libraries | brandon@xxxxxxx | http://policynotes.arl.org | @ARLpolicy
> | w: 202.296.2296 x156 | m: 202.684.6030 | 21 Dupont Circle NW, Washington,
> D.C., 20036


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