RE: E-Reserves question

[Jeffrey Galin <JGALIN@xxxxxxx>]

Kevin and Sandy,

You are probably aware of the discussion of coursepacks in Filing 235 of the
GA State case (Sept 30th, 2010) in which Judge Evans dismisses plaintiff's
motion for summary judgment  for injunctive and declaratory relief on grounds
of vicarious infringement.  Her definition of coursepacks is concise and
pertinent to this discussion (see below). Also, Evans' finding in favor of
Defendants on this claim (based on the fact that Defendants have no direct
financial interest)  works carefully to cite faculty testimony to distinguish
coursepacks from online reserves at GA State.  Her comments are particularly
interesting and convincing.  See pages 21-24 in particular.
Cheers,
jrg

Coursepacks are printed anthologies composed of all the
required readings for a particular course, which are typically
designed by the instructor and brought to a commercial copyshop
for printing. Students then purchase the coursepacks either
directly from the copyshop or from the school bookstore.
Typically, the copyshop and/or the school bookstore profit from
coursepack sales [Defendants' Reply, Doc. 210 at 18].
Georgia State's practice is to pay the publisher for permissions for all
the works included in the coursepack [Id.]


-----Original Message-----
From: Kevin Smith [mailto:kevin.l.smith@xxxxxxxx]
Sent: Saturday, September 03, 2011 4:20 PM
To: Kevin Smith
Cc: digital-copyright@xxxxxxxxxxxxxx
Subject: Re: E-Reserves question

But of course, in a full fair use analysis, e-reserves should be treated
differently than a commercially printed course pack.  The first factor will
look different, which was a point made earlier in this conversation.  By
conveniently ignoring the actual factors, the AAP FAQ avoids this kind of
obvious distinction and obscures the law.

It is ridiculous to say that publishers tell requestors that some things may
be fair use.  I have never heard that response (although I have been told,
once, that there would be no charge) and it is wholly impossible if one is
using the CCC.  The CCC web page will sell permission to make a single copy of
a single page, with no mention of fair use.

Kevin L. Smith, M.L.S., J.D.
Director of Scholarly Communications
Duke University, Perkins Library
P.O. Box 90193
919-668-4451<tel:919-668-4451>
<mailto:kevin.l.smith@xxxxxxxx>kevin.l.smith@xxxxxxxx<mailto:kevin.l.smith@du
ke.edu>


On Sep 3, 2011, at 3:59 PM, "Sandy Thatcher"
<<mailto:sandy.thatcher@xxxxxxxxxxxxxxxxxxxx>sandy.thatcher@xxxxxxxxxxxxxxxxx
edu<mailto:sandy.thatcher@xxxxxxxxxxxxxxxxxxxx>> wrote:

Well, of course you are right in one sense. But then statements from the ARL
and ALA are no more "balanced" on the subject, are they? I would include here
the ARL white paper by Jonathan Band that tried to make out the case for use
of everything but textbooks as "transformative" use.

The main purpose of the AAP FAQ was to disabuse people of the notion that
e-reserves should be treated differently from printed coursepacks. That was,
at least then, a popular view. For all i know, it may still be the prevailing
view among librarians that e-reserves are different.

Of course, publishers all the time, in responding to requests for permission,
tell requestors that they consider some uses as fair use.I know I did when i
was director at Penn State.

Sandy Thatcher