Last spring when the Northern District of Georgia issued a decision in the Cambridge University Press, et al. v. Becker, et al. observers viewed it rightfully as a victory for higher education. The recent decision in Kirtsaeng, DBA Bluechristines99 v. John Wiley & Sons, Inc. suggests that optimism about copyright reform may not be restricted to colleges and universities. It would appear that where the executive keeps a blind eye, and where the legislature is too paralyzed to act, the judiciary is stepping into the future.
In brief, what do these cases mean? The first case has higher education directly in its sites: it means that colleges and universities may use fair use for a number of appropriately limited applications for which many colleges and universities have already been doing, for example, for e-reserves and course-related materials. Implicit in this decision is a judgment about the availability of the 2001 TEACH-Act. The original intent of the act was to create the equivalent of the face-to-face classroom exceptions of the 1976 copyright law, section 110, to electronic media in distance and distributed learning. To achieve this goal all that would have been needed was a simple amendment to section 110, such as "this section applies to all media used by not-for-profit accredited institutions of higher learning in distance and distributed learning classrooms." But nooooo, the content industry, still feeling its oats in 2001, re-wrote most of the TEACH Act to read similarly to the Fugitive Slave Act of 1850 -- in other words, so complicated with detailed provisions only a an unconscious person could not see it as a prescription for continued conflict and eventually civil war. As a result, most institutions have relied on the fair use exemption in section 107 to do the work that the TEACH-Act might have otherwise accomplished. The Georgia State case -- which is at the district court level and will be appealed -- validates, for the most part, the fair use doctrine as sufficient protection against infringement claims in those use cases.
Yesterday's case casts a wider net than higher education. The plaintiff publishing company alleged infringement in the resale of books printed for original sale outside the United States in their resale within the United States. The court found this claim a violation of the "first sale doctrine," enshrined in section 109 of copyright law. Justice Breyer's opinion is notable for its recognition of the unintended consequences had the Supreme Court found otherwise. Not limiting the majority view to text book publications, where the facts of the case rested, he noted that copyright's legal umbrella includes software. Software, moreover, contemporaneously can be found in virtually every product in everyday life: cars, GPS systems, kitchen appliances, the gross majority of which are made outside the United States. Can't sell or resell those items because they have copyright protected material in them? The economy would shut down in a minute.
Two points. First, the crux of the original problem lay not in copyright but in global trade business models/pricing for international companies. Not studied in economics, I leave it to those who are to analyze more completely. The second point could be the stuff from which an entire book is written, but let me sum it up here: intellectual property cannot be the singular legal regime behind which an information economy rests. If U.S. law goes down that road, we will allow the coffers of a few existing companies to win out over a long-term strategic planning for a healthier global economy. What is good for America: intellectual property laws balanced substantively and procedurally between incentive and innovation, is good for a global economy. Right now we are not setting a very good example. But this case gives us hope to do better.
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