Google v. Oracle: Takeaways for Software Preservation, Cultural Heritage, and Fair Use Generally (2021 Reflection) | Software Preservation Network (SPN)

“On April 5, 2021, the Supreme Court issued its opinion on the long-running litigation between Oracle and Google over the reuse of aspects of Oracle’s Java programming framework in Google’s Android mobile operating system. The majority opinion, written by Justice Breyer and joined by five of his fellow justices (Chief Justice Roberts, and Justices Kagan, Sotomayor, Kavanaugh, and Gorsuch), sided with Google, saying its use was lawful because it was protected by fair use. Justice Thomas wrote a dissent, joined only by Justice Alito, arguing that Google’s use was infringing. The newest Justice, Amy Coney Barrett, did not participate in the arguments or decision of the case as it predated her joining the Court. More background on the case can be found in my earlier blog post for SPN summarizing the oral arguments.

Justice Breyer’s opinion is already a landmark for the reasons I laid out there: it is the first Supreme Court opinion to address fair use in nearly thirty years—the last one was Campbell v. Acuff-Rose in 1994. And it is the first Supreme Court opinion to address copyright’s protection for software—ever. And now we know that the opinion will be a milestone for another reason: it is a confident, erudite treatment of the issue by a Justice who has been thinking about copyright and software for more than half a century. As a law professor, Stephen Breyer earned tenure at Harvard based on his 1970 article, “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs.” The opinion is thus a very happy coincidence: a thorny and consequential issue confronted by a subtle and experienced thinker. The results are quite encouraging for software preservation and for cultural heritage institutions and fair users generally….”

AAP Vows to Protect Copyright from All Challengers

“Challenges to copyright protection are also happening at the state level, Pallante warned, where library lobbyists and “tech-funded” special interest groups are working to “divert copyright protection away from Congress to state assemblies,” an apparent reference to Maryland’s passage of a law late last week that would force publishers to make any digital content they license to consumers available as “an electronic literary product” to public libraries in the state “on reasonable terms.” The AAP opposed the law, and in her remarks, Pallante argued that these state efforts “are clearly preempted by the express language of the federal Copyright Act,” while also spinning a “false narrative.”

Pallante said libraries are an important part of the publishing ecosystem, but added that, “authors, publishers, and bookstores also have policy equities, which is why Congress enacted a singular cohesive federal copyright system that has address the ownership and sale of books since 1790.” She also hit back against what she said are lobbyists pushing states to fund open educational resources “through ugly misinformation campaigns aimed at publishers” and designed to replace publishers’ materials.

In a final point about copyright, Pallante said that the lawsuit the association filed a year ago against the Internet Archive for copying 1.3 million scans of books is still in discovery, but said the IA’s activities “are well outside the boundaries of both the law and copyright commerce, and ultimately pose an existential threat to the copyright framework on which authors and publishers rely.”…”

AAUP Addresses Opposition to Copyright Exemption for Researchers | AAUP

“On March 10, 2021, the AAUP signed onto a reply comment addressing opposition to its previously submitted long-form comment seeking an exemption from a prohibition on circumventing technological protection measures for text and data mining (TDM) of lawfully accessed motion pictures and lawfully accessed literary works distributed electronically….

The AAUP continues to support the exemption because faculty and academic researchers are and will continue to be adversely affected in their ability to make fair use of motion pictures and literary works if they are prohibited from accessing certain classes of works. The AAUP is delighted to be working with the Berkeley Clinic for the first time.”

Amazon’s Refusal To Let Libraries Lend Ebooks Shows Why Controlled Digital Lending Is So Important | Techdirt

The Washington Post tech columnist Geoffrey Fowler recently had a very interesting article about how Amazon won’t allow the ebooks it publishes to be lent out from libraries. As someone who regularly borrows ebooks from my local libraries, I find this disappointing — especially since, as Fowler notes, Amazon really is the company that made ebooks popular. But, when it comes to libraries, Amazon won’t let libraries lend those ebooks out:

When authors sign up with a publisher, it decides how to distribute their work. With other big publishers, selling e-books and audiobooks to libraries is part of the mix — that’s why you’re able to digitally check out bestsellers like Barack Obama’s “A Promised Land.” Amazon is the only big publisher that flat-out blocks library digital collections. Search your local library’s website, and you won’t find recent e-books by Amazon authors Kaling, Dean Koontz or Dr. Ruth Westheimer. Nor will you find downloadable audiobooks for Trevor Noah’s “Born a Crime,” Andy Weir’s “The Martian” and Michael Pollan’s “Caffeine.”

I’ve seen a lot of people responding to this article with anger towards Amazon, which is understandable. I do hope Amazon changes this policy. But there’s a much bigger culprit here: our broken copyright laws. In the physical world, this kind of thing isn’t a problem. If a library wants to lend out a book, it doesn’t need the publisher’s permission. It can just buy a copy and start lending it out. Fowler’s correct that a publisher does get to decide how it wants to distribute a work, but with physical books, there’s the important first sale doctrine, which lets anyone who buys a book go on and resell it. And that meant that in the past, libraries have never needed “permission” to lend out a book. They just needed to buy it.

Unfortunately, courts seem to take a dim view of the first sale doctrine when it comes to digital goods.

Dotawo 7: Comparative Northern East Sudanic Linguistics – Dotawo Journal

“Furthermore, it appears that the turn toward open access in the scholarly communications landscape is increasingly facilitating the agendas of an oligopoly of for-profit data analytics companies. Perhaps realizing that “they’ve found something that is even more profitable than selling back to us academics the content that we have produced,”5 they venture ever further up the research stream, with every intent to colonize and canalize its entire flow.6 This poses a severe threat to the independence and quality of scholarly inquiry.7

In the light of these troubling developments, the expansion from Dotawo as a “diamond” open access to a common access journal represents a strong reaffirmation of the call that the late Aaron Swartz succinctly formulated in his “Guerilla Open Access Manifesto”: …

Swartz’s is a call to action that transcends the limitations of the open access movement as construed by the BOAI Declaration by plainly affirming that knowledge is a common good. His call goes beyond open access, because it specifically targets materials that linger on a paper or silicon substrate in academic libraries and digital repositories without being accessible to “fair use.” The deposition of the references from Dotawo contributions in a public library is a first and limited attempt to offer a remedy, heeding the “Code of Best Practices in Fair Use” of the www?Association of Research Libraries, which approvingly cites the late Supreme Court Justice Brandeis that “the noblest of human productions — knowledge, truths ascertained, conceptions, and ideas — become, after voluntary communication to others, free as the air to common use.”9 This approach also dovetails the interpretation of “folk law” recently propounded by Kenneth Goldsmith, the founder of public library www?Ubuweb….”

Best Practices in Fair Use for Open Educational Resources – American University Washington College of Law

“We are pleased to announce the release of the Code of Best Practices in Fair Use for Open Educational Resources. This document is intended to support authors, teachers, professors, librarians, and all open educators in evaluating when and how they can incorporate third party copyright materials into Open Educational Resources to meet their pedagogical goals….

Webinar:
Wednesday, February 17, 2021 | 3:00pm-4:30pm ET (12 pm PT)
Registration: https://us02web.zoom.us/webinar/register/WN_4oHpIFDnRoaJzOq8R6_fwg …”

Code of Best Practices in Fair Use for Open Educational Resources

“This Code is a tool for educators, librarians, and authors to evaluate common professional scenarios in which fair use can enable them to incorporate inserts, including those protected by copyright, to create OER. It can provide groups working on OER projects with a shared framework for evaluating and understanding when and how to incorporate existing content to meet pedagogical needs….”

Sci-Hub Case : Founder Elbakyan Takes ‘Fair Dealing’ Defence; Says Academic Journals Exploitative

“Online repository of science articles, Sci-hub, has taken the defence of ‘Fair dealing’ before the Delhi High Court in a suit for injunction filed by publishing houses Elsevier Ltd, Wiley India Pvt. Ltd., and American Chemical Society over alleged copyright infringement. The website’s founder, Alexandra Elbakyan has submitted that the platform is engaged in providing free access to research publications and scientific material, for the benefit of the students and researchers and the consequent benefit of the public….

Thus, it is claimed that the suit is barred by Section 52(1)(a)(i) of the Copyright Act. The provision provides that ‘Private use including research’ of a literary, dramatic, musical or artistic work amounts to fair dealing and shall not constitute an infringement of copyright….”

Sci-Hub Case : Founder Elbakyan Takes ‘Fair Dealing’ Defence; Says Academic Journals Exploitative

“Online repository of science articles, Sci-hub, has taken the defence of ‘Fair dealing’ before the Delhi High Court in a suit for injunction filed by publishing houses Elsevier Ltd, Wiley India Pvt. Ltd., and American Chemical Society over alleged copyright infringement. The website’s founder, Alexandra Elbakyan has submitted that the platform is engaged in providing free access to research publications and scientific material, for the benefit of the students and researchers and the consequent benefit of the public….

Thus, it is claimed that the suit is barred by Section 52(1)(a)(i) of the Copyright Act. The provision provides that ‘Private use including research’ of a literary, dramatic, musical or artistic work amounts to fair dealing and shall not constitute an infringement of copyright….”