From: Kevin Smith <[log in to unmask]>
Date: Wed, 4 Dec 2013 12:58:52 +0000

In the past month there have been a couple of developments in the area
of copyright, fair use and the lawsuit against Georgia State that
perhaps have not gotten as much attention as they deserve.  I am
always hesitant to repost my own blog posts to lists, but in this case
I have been asked twice to make these developments better known in the
library community.

The first development was the oral argument held in the 11th Circuit
Court of Appeals in the GSU case.  As I say in the blog, it was a
rather strange session, which neither bode well for GSU nor reflected
well on the preparation of the judges who are hearing the case.  There
were fundamental misunderstandings expressed from the bench both about
the facts of the case and the applicable law.  Both lawyers seem
bemused and uncertain how to respond to the left-field questions that
these misunderstandings generated, although the lawyer for the
plaintiff publishers finally decided that his best course was to agree
with the judges and encourage their mistakes, since they tended to
favor his clients. My detailed account of these arguments is at
http://blogs.library.duke.edu/scholcomm/2013/11/20/a-discouraging-day-in-court-for-gsu/.

There is also a piece about the arguments by Andrew Albanese in
Publishers Weekly at
http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/60087-appeals-court-questions-gsu-e-reserves-verdict.html?utm_source=Publishers+Weekly&utm_campaign=32c7485c8a-UA-15906914-1&utm_medium=email&utm_term=0_0bb2959cbb-32c7485c8a-304620301.

The other development tends entirely the other way, towards a sane and
sensible interpretation of fair use.  Ironically, it comes from a very
similar lawsuit to the GSU case, but brought in Israel by some
publishers against Hebrew University and interpreting the Israeli fair
use provision, which was added to the Israeli law in 2007 and is
nearly identical to that in the U.S.  That case settled last week with
an agreement that recognizes as fair use reproduction of entire
journal articles and up to 20% of books for  both non-profit printed
course packs and e-reserves.  As I say in this blog post --
http://blogs.library.duke.edu/scholcomm/2013/12/02/fair-use-georgia-state-and-the-rest-of-the-world/
-- if the U.S plaintiffs had been willing to accept such a rational
agreement, the protracted and damaging lawsuit against GSU could have
been avoided.

Yesterday I heard from Professor Niva Elkin-Koren of Haifa University
that an English translation of the settlement agreement is now
available -- it wasn’t when I wrote my post -- so I offer these new
links in partial justification for this message, which otherwise just
shamelessly cites my own work of the past month:

http://weblaw.haifa.ac.il/en/academyincommunity/cliniclist/tech/projects/pages/fairuse.aspx

http://weblaw.haifa.ac.il/he/AcademyInCommunity/ClinicList/tech/projects/Documents/Shoken%20HU%20Settlement%202013.pdf

Kevin L. Smith, M.L.S., J.D.
Director, Copyright and Scholarly Communication
Duke University Libraries
Durham, NC  27708
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