Column Editor: Will Cross (Director of the Open Knowledge Center and Head of Information Policy, NC State University Libraries) ORCID: 0000-0003-1287-1156
Against the Grain V34#2
QUESTION: An attorney working in a university counsel’s office asks, “Do you have any predictions about how Judge Ketanji Brown Jackson can be expected to lean on copyright cases if she is appointed to the Supreme Court?”
ANSWER: This question is one that has been on the minds of a lot of court watchers and policy wonks over the past few months. With Justice Stephen Breyer’s retirement, the Supreme Court lost one of the most knowledgeable and engaged voices it had on copyright issues. Breyer’s deep knowledge of copyright goes back to his early career as an academic before he joined the judiciary. His article “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Program” published in the Harvard Law Review in 1970 is often cited as an early and influential critique of copyright expansion.
On the Supreme Court Breyer wrote numerous influential copyright opinions including the majority opinion in Kirtsaeng v. Wiley (2013) holding that the first sale doctrine applied to works produced outside the United States with the authorization of the copyright owner, a critical decision for library lending. He also authored last term’s major copyright decision, Google v. Oracle (2021), where the Court found that fair use permitted Google’s replication of Java declaring code in the Android application programming interface. Beyer also wrote or joined several majority opinions supporting stronger applications of copyright including MGM v. Grokster (2005) and ABC v. Aereo (2014).
In all cases, Breyer was a consistently thoughtful voice on copyright issues and his retirement leaves a major gap on the Court going forward. As a result, all eyes are on Judge Ketanji Brown Jackson, the current (as of this writing) nominee who is expected to be confirmed before the start of the new term. Jackson is highly-respected as a jurist and served as Justice Breyer’s clerk in 1999-2000 so it may be natural to speculate as to how Jackson’s approach to copyright will shape the Court going forward.
Unfortunately, we don’t have a lot of information to rely on. While Judge Jackson has heard several cases that touch on copyright, most do not directly address substantive issues in a way that suggests what her approach will be in future cases. Instead, those cases were generally decided on procedural grounds due to failure to state a claim, lack of subject matter jurisdiction, and so forth.
The Copyright Alliance, an organization which represents the interests of creators and rightsholders, released a useful overview of Judge Jackson’s record in copyright cases: https://copyrightalliance.org/president-biden-judge-ketanji-brown-jackson/. This resource walks through the cases that Jackson has heard or been involved with and concludes that “while Judge Jackson may have had very few public interactions with copyright law, there is no doubt that she has a firm grasp of the basic principles of copyright law, including copyrightability, registration, and elements in an infringement case.”
Assuming Judge Jackson does become Justice Jackson, we will just have to wait and see how she approaches cases dealing with copyright issues. One early test case for Justice Jackson is already on the horizon. As highlighted in the “predictions for 2022” column in December, the Supreme Court has agreed to review the much discussed Andy Warhol Foundation v. Goldsmith case dealing with fair use of images, a topic not addressed directly by the Supreme Court in many years. By this time next year, we may have a much better sense of how Justice Jackson views copyright and fair use.
QUESTION: A librarian asks, “I’ve heard a lot about Controlled Digital Lending in the U.S. How do you think this practice fits with the Canadian law of fair dealing?”
ANSWER: The practice of Controlled Digital Lending (CDL) has been discussed in this column in the past. For a refresher you can review the overview and white paper available at this site: https://controlleddigitallending.org/. In brief, CDL is a legal theory that supports libraries loaning print books to digital patrons in a “lend like print” fashion based on the American doctrine of fair use. While Canadian law does not include fair use itself, the Canadian law of fair dealing is designed with many of the same policy goals in mind. Indeed, as noted Canadian copyright expert Carys Craig wrote in a recent Code of Best Practice document, “today, the fair dealing doctrine in Canada is remarkably similar, in purpose and scope, to the U.S. fair use doctrine.”
Where does that leave Canadian institutions seeking to apply the principles of CDL in their own legal contexts? In order to answer that question, a group of Canadian copyright experts working on behalf of the Canadian Federation of Library Associations Copyright Committee recently released a paper exploring “the legal and policy rationales for the [CDL] process in Canada, as well as a variety of risk factors and practical considerations that can guide libraries seeking to implement such lending.” The paper, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4031054, walks through the policy purposes that CDL might support as well as the application of fair dealing to common scenarios where CDL may be beneficial for libraries working to meet their mission. It also explores three primary risks associated with CDL: 1) the risk that a library is sued in the first place, 2) the risk that the library loses the lawsuit, and 3) the risk of consequences in the face of defeat in a lawsuit. In order to manage those risks, the paper concludes with a set of recommendations for system design and library policies, collections choices, and relationship to the Canadian Public Lending Right. Overall, the paper offers a detailed and thoughtful guide to controlled digital lending grounded in the specific legal context of Canadian copyright and fair dealing.
QUESTION: A faculty member asks, “What’s going on with that professor who is suing their student for posting an exam online?”
ANSWER: In March it was reported that a business professor at Chapman University had found questions and test prompts from his previous exams posted on Course Hero, a website marketed as a study aid but often used to share exams and other assessments in ways that could be used by students to cheat. Many (perhaps most?) instructors have had this experience, but this professor chose to do something that most do not — he decided to sue the students who posted the materials for copyright infringement.
The professor claims that the lawsuit is necessary because Course Hero will not reveal the name of the student or students who posted the materials. His attorney, quoted in the Washington Post, argued that “he’s not trying to bankrupt his students or their parents. What he’s trying to do is prevent cheating and have a chilling effect on students cheating going forward.” Although the claim does request financial damages, the professor claims that once the names of the students are revealed he will “probably drop the case” and simply turn the students over for disciplinary action with the university.
Regardless of the intentions of the professor, this case is an interesting fit with copyright law. First, it is not entirely clear that the professor actually owns the materials at issue. Assuming the materials are original and creative enough to qualify for copyright protection (not all test questions are) many institutional policies claim copyright in course materials as works made for hire. The question of faculty ownership has always been somewhat blurry with older cases referring to a “teacher’s exception” that exempted lecture notes and related course materials from ownership under work for hire. The 1976 Copyright Act did not include any language on this type of exception and many scholars believe there is no blanket right to traditional academic works unless embodied in a contract, policy document, or other agreement. The Chapman University policy grants copyright to the author for “textbooks or other pedagogical works” but claims all rights in “syllabi and courseware.”
The professor has been able to register copyright in the work with the Copyright Office as required to file a lawsuit, which grants him at least a presumption of validity and the university has declined to participate in the lawsuit in any capacity, so the baseline issues of ownership are not likely to come into play in this case. What may be more relevant is that the stated aims of the professor are so out of line with the purpose of copyright that the case might be filed for what a court considered an improper purpose. As a general principle, litigation solely intended to achieve something totally extraneous to the litigation such as using a copyright lawsuit to reveal the name of an anonymous person online, is problematic.
Whether or not this could reach the level of abuse of process and/or malicious prosecution under California law, a judge or jury may push back on opportunistic litigation that seems to be using copyright law to achieve something copyright is in no way designed to do. While the legal issues are clearly distinct, the first thing that came into my own head when I read this story was the ongoing discussion over strategic lawsuits against public participation (SLAPP). These suits intended to censor, intimidate, and silence critics have been the subject of much discussion and thirty-one states have developed legislative protections against SLAPP lawsuits.
To be clear, there are significant differences between SLAPP suits, which usually involve frivolous claims of defamation, and this case which seeks to use copyright in order to intimidate and unmask students suspected of academic dishonesty. But opportunistic litigation that bends the law far beyond any reasonable reading of the purpose and policy of that law can lead to whiplash that comes back on the individual litigant or the other stakeholders in their area of practice.
Regardless of the legal outcome, it would be easy to imagine the reaction of students at Chapman to this litigation. If the ultimate aim of the litigation is to have a chilling effect on students sharing information about the course, it may succeed in ways beyond the professor’s stated intentions. What student would want to subject themselves to a classroom where they may be subject to opportunistic (and arguably frivolous) litigation by their professor? One can only imagine what the course evaluations will say at the end of this semester…