Re: E-Reserves question

[Brandon Butler <brandon@xxxxxxx>]

I was just trying to address the original poster's concern about the copies
being somehow tainted in virtue of their ILL origins. Ereserves are typically
taken from the library collection, so I thought it was useful to account for
the legitimacy of the ILL copies. They are the property of the requesting prof
just as much as if he'd bought them himself from the publisher. If he could
put his own stuff on ereserve (and maybe he can't), then he can put ILL
materials up.

Owning the copy being used is definitely NOT a precondition for fair use in
every case. But I can imagine a judge, who gets to balance whatever inputs she
likes under the equitable fair use analysis (so long as she addresses the four
factors) raising an eyebrow if there were an element of impropriety in the
ereserves workflow. Imagine a library that used Bittorrent to get the digital
versions of works it put on reserve, rather than digitizing works from its own
collection. Also, to the extent that there is an element of "space shifting"
in the fair use argument, a judge might ask whether the user could lawfully
access the original copy (or provide others with such access) in evaluating
whether she can legitimately 'shift' her mode of access into the digital
realm. I
Think the original poster's question was probably motivated by that space
shifting intuition, which does presuppose ownership of a copy or other
legitimate access.


Hope that helps,
B

Sent from my mobile.

On Sep 2, 2011, at 0:44, John Mitchell <john@xxxxxxxxxxxxxxxxxx> wrote:

> I don't follow the statement in #2, "2. Among the rights of a lawful owner
of a copy is the right to make fair uses
> of that copy." I've never heard of fair use of a "work" of authorship having
anything to do with being the lawful owner of a "copy" of the work.
>
> I live and breathe the First Sale Doctrine, and this statement just doesn't
fit for me, but perhaps I'm missing something? The Section 202 part of the
first sale doctrine underscored that owning copies and owning copyrights are
two entirely different things, and transfer of one has no effect on the
transfer of the other. The Section 109 portion speaks of ownership of a
lawfully made copy only with respect to transferring ownership or possession
of that particular copy, and has no bearing (at least not apparent to me) on
Section 107 (fair use).
>
> Sure, I can understand that redistribution of the particular copy might be
fair use if it would otherwise infringe the copyright, but in light of 109(a),
those situations would rarely occur. I'm aware of no judicial opinion holding
that the distribution of a copy by someone not entitled by Section 109(a) to
do so was nevertheless non-infringement by virtue of Section 107.
>
> Has my focus on 109 blinded me to some 107 jurisprudence applicable to use
of a copy as opposed to use of a work?
>
> John
>
>
> On Sep 1, 2011, at 1:28 PM, 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