The Georgia State eReserves Case Appeal Decision: a practical guide for librarians

Pegasus Librarian - Iris Jastram - Tue, 10/21/2014 - 12:31pm

Wikimedia Commons

Last Friday the 11th Circuit Court of Appeals handed down its opinion on the Georgia State (GSU) eReserves Case. The Cambridge University Press et. al. v. Patton ruling (the case’s formal name) sounds pretty dire if you only read the good parts version: they reversed the original District Court decision which library folks had mostly liked quite a lot (and which I wrote about here).

Now, if Judge Vinson had had his way, the ruling would have been pretty dire. For real cringe-worthy reading, have a go at his concurring opinion starting on page 113. But the majority opinion upholds much of the method of thinking about copyright that the original District Court opinion used and which made so much sense to me (with a few caveats, but really, it was pretty good).

The Gist

In effect, the new ruling says that the District Court got things mostly right, but occasionally wrong, and that now the District Court has to go back over everything and come up with a new ruling based on the Circuit Court’s instructions on how to think about things differently on a few points. Now, this could mean that not a whole lot changes the second time around, or it could mean that a lot changes on the case-by-case analysis, but for the most part I’m encouraged to see that the parts of the analysis that matter to us will remain largely unchanged.

Also, I should note that neither court opinion is law outside of the 11th Circuit (which is Georgia, Florida, and Alabama), and that whatever the District Court comes up with next will likely be appealed again, so this saga could go on for decades. Even so, these opinions give us some good guidance on how to think through the copyright decisions that we make every single day, so they are worth reading and understanding. Also, the opinions quote heavily from important case law on copyright, so they serve as an excellent introduction to the major cases involved in educational copyright.

More Detail

For those of us who deal with the day-to-day work of providing course readings to students, here are the portions of the case that are relevant to our decision-making.

First of all, the plaintiffs (the publishers) really wanted the Court to make a ruling on whether eReserves, as a system and a practice, was a violation of copyright law, just in general. They cited non-transformative distribution of published works as copyright infringement. The Court refused to make that judgement, which is good news for libraries and higher education. (Had it been left to Judge Vinson, things would have gone very differently.) A practice or system can’t be fair use or not, only individual uses can be fair use or not. And furthermore, even non-transformative uses can be fair use in some circumstances (see page 73).

So if we’re to make decisions on a case-by-case basis, what will that look like? Well, one of the strengths of this ruling is also one of the things that makes our jobs harder. The Circuit Court rejects all “bright lines” or simple math that will “mechanistically” determine whether a particular use is fair or not. There’s no checklist available that will spit out a perfect answer. In fact, the District Court’s initial plan to assign each of the four factors of fair use a point and then just add up the points at the end is the primary thing that the Circuit Court said needs to be re-thought. Instead, the Circuit Court says that you have to weigh each of the four factors while you ultimately try to decide if the use will promote rather than hinder the kind of knowledge creation and sharing that copyright law was intended to encourage. The Classroom Guidelines are not law and cannot be used to make blanket categories of things fair or not fair (see pages 88-89). In fact, they say that even “best practices” can only get you so far — that only an “individualized fair use analysis” will do the trick (page 85).

While all of this is consistent with the law and with prior cases, it also makes it really tricky for libraries to advise classroom instructors about what is and is not permissible when it comes to putting readings on eReserve. In effect, this decision is saying that if you say “10% or 1 chapter and everyone’s happy” you could still be in danger of infringing or causing infringement. Instead, this ruling suggests that the only way to move forward intelligently is to make and record individual, case-by-case assessments for each use. Recording the decision-making process is important because if an employee of a non-profit educational institution, library, or archives makes a decision “in good faith” that the use is fair use, the court will not levy statutory damages (see section 504(c)(2) of copyright law). If you’re looking for a model of this kind of policy, the University of Minnesota has a fantastic web form that talks people through their case-by-case analyses and then allows them to save a copy of their decision-making process: Thinking Through Fair Use. One option would be to have classroom instructors attach something like this as a cover sheet with anything they submit for eReserves.

So, how then shall we think about the four factors? The first factor is often seen as a win for educational copying (especially since “multiple copies for classroom use” is written into the fair use section of copyright law, section 107). The 11th Circuit says it’s not quiet that simple, but then ultimately says that GSU’s uses were non-profit enough and educational enough that the first factor favors fair use pretty much across the board.

The second factor was up for some debate. The District Court said that since the works at issue were all non-fiction, the second factor weighed in favor of fair use. The Circuit Court countered that there can be plenty of creative intellectual work in non-fiction publications, so this factor really has to be applied on a case-by-case basis to each use. At best this factor is neutral in determining whether the use was fair or not.

Predictably (by now) the third factor also has no easy answers. You can’t just say “10% or 1 chapter will always be safe.” Instead, you have to decide if you’re taking just what you need in order to accomplish goals that are consistent with fair use. Essentially, you have to balance this factor with the other three on a case-by-case basis.

Practically speaking, the Circuit Court sets an impossible bar for making decisions about the fourth factor, the Market Effect factor. They would like the case-by-case analysis to come up with a yes or no answer to the question: Will this use substantially impact the market for this work or for licenses of this work (but only the license piece if there’s a substantial license market for the piece)? There’s really no way for someone outside of the publishing industry to have access to the numbers and projections that would make this determination possible. Probably the closest approximation would be to decide that if there is a license available for digital excerpts, we should assume that that weighs against fair use for the fourth factor. I’m not happy with the license market becoming a market, and I’m really not happy with the massive emphasis on economics, but that appears to be the way the 11th Circuit is thinking about things. Remember, though, that having one factor weigh against fair use is not the whole story. You still have to weigh that one factor against the other three and against the ultimate mission of fair use and copyright. No easy answers allowed.

And finally, a word of caution. You may find people talking about what constitutes a “whole book” when calculating percentages copied. This issue has not been decided. The publishers want it to be the main body of the book, and GSU wanted it to be all the pages in the published book, including the index and tables of contents and such. The District Court decided not to answer this question because it was raised too late in the proceedings, and the Circuit Court said that the District Court was within its rights to decide not to decide.  So far, that’s as much as we know.

More coverage from people who know more than I do:

Categories: Citizens

Fall Container Idea

My Northern Garden - Mary Schier - Mon, 10/20/2014 - 1:12pm

Fall container completed in less than 20 minutes.

A week or so ago, while I visiting my daughter in Chicago, I happened upon a fun idea for a simple fall container. The container (shown below) was on display at the Morton Arboretum in suburban Chicago. The container itself was large, wide and made of terracotta. It was filled with an assortment of gourds and squashes. Simple, and very pretty.

The inspiration for my fall container

I knew that was an idea I could easily replicate at home, and I had just the container to do it with. A couple of years ago, I bought a small, metal horse trough to use as a planter. I ended up making it into a small water feature this year, which I had emptied out a few weeks ago.

At the Northfield Farmers’ Market last Friday, I found an assortment of squashes. One of the sellers was also selling bouquets made of ornamental cabbage and kale. Cute! I bought one and decided to use it as an accent in the container. The kale and ornamental cabbages are basically cut flowers, so I needed to keep them in water. To set up the container and keep the squashes elevated, I flipped a couple of pots over and set them in the trough. Then I filled a couple of tall canning jars with water and placed one in the back of the container and one in the front.

Pots elevate the gourds and a jar of water keeps the kale fresh.

I put the kale in the water jar in the back and three of the cabbage in the water jar in front. The squash were balanced on the upside down pots. It looked nice, but I had one more cabbage and a pumpkin left. I put the cabbage in another jar of water set inside a colorful container and set the pumpkin down in front of the trough. Voila! Instant fall container.

Once I had everything bought, putting the container together took less than 20 minutes.

I’ve tried a couple of fall container ideas before including planting a pumpkin here and here. What’s your favorite fall container idea?

Love the texture in this arrangement.

Related posts:

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Categories: Citizens

Writing Retreat in Wisconsin

My Musical Family - Joy Riggs - Sun, 10/19/2014 - 9:42pm
Last week at this time, I had just returned from an amazing four-day writing retreat at Faith’s Lodge in northern Wisconsin. I was even more productive than I could have hoped: during the retreat, I wrote two essays, worked on Chapter One of my book, wrote a scene for a later chapter of the book, and transcribed my two most recent interviews with Ted Papermaster, one of G. Oliver’s former band boys.

I am feeling even more excited now about the direction and progress of my book, thanks to the feedback of the other women writers at the retreat, and the encouragement of retreat organizer and facilitator extraordinaire, writer and teacher Kate Hopper.

I took a break from writing one afternoon to explore the lodge property.And I saw this little guy on the path.I am hoping to return for the next retreat in February. It will be colder and snowier then, no doubt, but all the better for sitting inside in front of one of the lodge’s many fireplaces and immersing myself in my writing.

How could I not be inspired to write, with views like this?!
Categories: Citizens

News Flash! Our Novel, AND SOMETIMES Y, is Now an Audio Book–I Have Five Copies to Give Away!!

Winona Media (Leslie Schultz) - Sun, 10/19/2014 - 6:23pm

Julia and I are thrilled to learn that our second Sundog book, And Sometimes Y, is now available as an audio book. The illustration above shows the original group of five friends and the boy new to Sundog, Yves, who is sometimes a friend and sometimes doesn’t seem to be friendly at all.

People of all ages like to be read to, and we are happy to have both of our books now in audio form. To celebrate, the first five people who email me a request will get a coupon from our publisher for a FREE COPY.  This generous offer is made possible by publisher par excellence Lisa Cottrell-Bentley of Do Life Right, Inc.

Here is a link to Amazon with information on how to purchase a  paperback book, a Kindle version, or the new audio version. The paper- and e-book versions have the wonderful map of Sundog and incredible illustrations by Heather Newman.

The new audio book is a completely different experience using the vocal talents of Carol Mintz, allowing you to spend time in Sundog as you move about your day.

The first book in our series, The Howling Vowels, is also available in all three formats. Die-hard fans can create a six-pack!

Thanks for helping us to spread the word by forwarding this email and considering a brief review on Amazon–people really do read those!

Leslie & Julia

Categories: Citizens

Postcard: October 20, 2014

Winona Media (Leslie Schultz) - Sun, 10/19/2014 - 6:20pm

Categories: Citizens

Information Literacy sessions at the Minnesota Library Association

Pegasus Librarian - Iris Jastram - Fri, 10/17/2014 - 1:09pm

As I mentioned earlier, last week was a busy one in part because I was busy presenting at the Minnesota Library Association’s annual conference last week. It was a blast! The audiences were participatory and I learned a lot from my co-presenters in each presentation. What fun.

“The ACRL Framework for Information Literacy: What does it mean for instruction librarians?”

Presented by Iris Jastram (Carleton), Jason Paul (St. Olaf), and Rachel Weiss (Augustana), this presentation updated instruction librarians on the new (draft) Framework for Information Literacy from ACRL.

“Studying the Second Year: College Sophomores, Research Behavior, and Information Communication.”

Presented by Anna Hulseberg (Gustavus), Iris Jastram (Carleton), Heather Tompkins (Carleton), and Michelle Twait (Gustavus). this presentation combined Carleton’s Information Literacy in Student Writing project with Gustavus’ mixed methods study of sophomore research practices.

Categories: Citizens

Woodley Street: Narrowing the focus

Betsey Buckheit - Thu, 10/16/2014 - 3:00pm
Northfield’s City Council is getting ready to discuss Woodley Street’s sidewalks on October 28. If this work session conversation follows the well-worn path of earlier sidewalk and street improvement projects, it will go something like this: progressive Council members who … Continue reading →
Categories: Citizens

Biking in the Fall

Myrna CG Mibus - Idyllwild - Wed, 10/15/2014 - 2:09pm
I've been off the bike for a few weeks (largely due to being pretty down and out with a cold for three weeks) but got out my Salsa Vaya this morning and headed out for a short ride on both gravel and tar roads near my home.

It was a lovely day. The fall colors are a little past peak around my home but still quite lovely. I stopped several times on my ride to take pictures of the pretty trees. I did this because I wanted to capture all of the beauty of nature - and because I am pretty out of shape and figured that taking pictures was a good cover for the fact that I actually felt the need to stop a few times and rest.

I'm glad I'm feeling well enough to be back out on my bike and am looking forward to getting out some more in the days to come.

Get out and enjoy the beauty of the fall season!

Categories: Citizens

Live Local Market Conditions

Tim Freeland - What's going on with this guy? - Wed, 10/15/2014 - 11:53am
Average Northfield Sale Price (hover to view detail)

Homes for sale per local price range (hover to view detail)

Average Time To Sell – Market Time (hover to view detail)

Categories: Citizens

One transmission line easement settled!

Carol Overland - Legalectric - Tue, 10/14/2014 - 9:53pm

One small step… and a giant leap!  A transmission easement settled, and at more than twice the original offer.  Yeah, we can live with that.

The troubling thing is that the appraisal didn’t really make sense, and they way they came to the appraisal amount didn’t add up.  But despite that, the bottom line was good, so we’re not going to quibble.

Onward, heading up north for transmission hearings for the Not-so-Great Northern Transmission Line.

Categories: Citizens

Postcard: October 13, 2014

Winona Media (Leslie Schultz) - Mon, 10/13/2014 - 8:44am

Categories: Citizens

October in the Arb

Penelopedia: This & That in Northfield - Sun, 10/12/2014 - 3:26pm
I've been resting a troublesome foot and so it has been weeks since I've taken a good walk in the Arb (the Carleton College Cowling Arboretum). Today I could not stay away, and so I walked gently for two and half miles through the eastern side of the Lower Arb. While the trees are more spectacular in town, where there are many brilliant maples, autumn in the Arb has its own mellow beauty -- the beauty of dried grasses and hard or fluffy seed pods, of shimmering milkweed floss, of rusty oaks and burgundy sumac and the sparkle of low sun skimming across the prairie.

Categories: Citizens

Awesome Filmmaking by the Girls

Blowing and Drifting - Christopher Tassava - Sun, 10/12/2014 - 4:24am

Julia learned how to use the iOS version of iMovie at school this week, so she and Vivi have been making “trailers” – four so far. Each is better than the last, and the girls are especially happy with these three. Amazing creativity – and no shortage of sheer weirdness.

The Diary of Fate

Click here to view the embedded video.

Pixie Dust

Click here to view the embedded video.

Attack of the Makeup Monster

Click here to view the embedded video.

Categories: Citizens

And all is calm on the West front!

Carol Overland - Legalectric - Fri, 10/10/2014 - 6:56pm

The wall is UP.  The street is paved, and the sidewalks were finished today!  Like WOW!  Next week they fill in the boulevards, and do something with that hill behind the retaining wall.  Almost… almost…

And the good news is that now we’ve got drainage that won’t turn the sidewalks into a skating rink, and the pole for the Little Free Library and light is now installed!

Categories: Citizens

Bees tonight!

Carol Overland - Legalectric - Fri, 10/10/2014 - 6:44pm

And so says the STrib:

Willie & the Bees buzzed for first gig in 14 years

Time to hit the road and jump on the LRT!

Categories: Citizens

Writing Accountability Plan – My New Great Idea

My Musical Family - Joy Riggs - Tue, 10/07/2014 - 10:31pm
We have been celebrating my youngest child’s birthday for the past couple of days – first with a friend party/sleepover, then with a family party, and today with leftover cake and ice cream. Elias turned 14, which seems impossible in some ways. What’s even more unsettling than how tall he’s getting is what else his birthday represents for me – it marks the passage of another year of my work on the G. Oliver Riggs project.

Elias celebrates turning 14It was eight years ago this month that I first began to help my dad with some research into the career of his paternal grandfather. At that time, I didn’t know where the research would lead, or how long it would take, but it seemed like an interesting and important project to pursue.

The project has come a long way in those eight years. And although I sometimes feel discouraged that so much time has passed without the completion of an “end product,” I also realize that the time has been necessary for the project to grow and evolve into its current shape: a narrative non-fiction book that explains G. Oliver’s pioneering efforts to shape Minnesota's community and school band traditions and explores the power of music to connect people across generations.

Because I do want to complete the book before another eight years have passed, I recently came up with a writing accountability plan. Instead of proceeding with a vague goal of finishing the book “soon,” I have created specific goals and deadlines for completing all of the chapters in the next 12 months. My friend and writing colleague Randy Brown, who inspired me to start this blog in 2010, has agreed to play the role of bad cop editor and help hold me accountable for meeting my deadlines.

I already achieved my first goal when I sent him a draft of the book’s prologue on Oct. 1. If I continue to meet the deadlines I’ve set, I will have a draft of the entire book done around the time Elias turns 15. That, my friends, will be an achievement worthy of several days of celebration and a generous amount of cake!

Categories: Citizens

Call Me Ms. Information Literacy: Two Sessions at the Minnesota Library Association this Week

Pegasus Librarian - Iris Jastram - Mon, 10/06/2014 - 4:22pm

As it turns out, I’ll be presenting at MLA not once but twice this week, so if you’re headed there be sure to stop by and say hi!

First I’ll be part of a panel with Jason Paul of St. Olaf and Rachel Weiss of Augustana entitled “The ACRL Framework for Information Literacy: What Does It Mean for Instruction Librarians?” We’ll talk about weaving together your institution’s mission and the new (still draft) Framework for Information Literacy to create elements in your library sessions that move students toward greater competence with the core concepts of the Framework.

Then I’ll do a quick change and present with my colleague Heather Tompkins and with two colleagues from Gustavus, Anna Hulseberg and Michelle Twait, on a session entitled “Studying the Second Year: College Sophomores, Research Behavior, and Information Communication.” The Gustavus librarians have done some fascinating research into the behaviors of sophomores who are preparing research projects, and Heather and I have been part of our library’s Information Literacy in Student Writing (based off of sophomore writing). Put the two together and we suddenly know quite a lot about sophomore skills and habits when it comes to research.

Categories: Citizens

Postcard: October 6, 2014

Winona Media (Leslie Schultz) - Sun, 10/05/2014 - 6:24pm

Categories: Citizens

Stephanie Henriksen at Northfield Arts Guild

Carol Overland - Legalectric - Sun, 10/05/2014 - 1:05am

Stephanie Henricksen has been a friend, activist, cohort, and client on so many land use issues for so long now, and though I’d seen her “Farm Art” show that she put together with many other farm and agriculture focused artists, I’d not seen a room full of her work… until today.  And apparently is was a side of her that many in Northfield did not know existed!  So good to fill them in.  It was the last day of her “Retrospective” at the Northfield Arts Guild.  That’s Stephanie in her “winter” hat discussing her work:

One day we were in my office talking about the Target development just south of Northfield, and, well, it was a spirited discussion, and I leaned back snorting and CRACK!  My chair broke, I went flying over backwards, hootin’ and hollerin’ all the way to the floor.  A few days later she comes in with a drawing of it, which I have to this day.  I also have an evocative photo of Stephanie, taken by David, on my wall, of her sitting with three of her many ducks who were assassinated in a drive by shooting just after she’d published an editorial about a local land use project — a price of her advocacy.  She’s had other incidents, including a sow’s teats skinned off and left in her mailbox, a rib cage stuck on her fence post, during her work on feedlot regulation.  She’s well known for her activism, but unfortunately, not so much for her art.

Oh, and did you know she’s an alto sax player too?

And some others from the exhibition:

This is her mother out in the yard:

This was one of my favorites — a squirrel ring toss!!!

This one was to be a “Madonna and Child” which she said just wasn’t working until she put her dog in:

And here she is again, Stephanie Henricksen and friends:

And from my personal collection from a much appreciated thank you note she’d sent in the heat of a tough struggle, after we’d made some progress on a land use issue.  I think we’d gotten a permit stalled out in Rice County with a petition to the EQB for environmental review:

Categories: Citizens

It was brought to you by a trucker…

Carol Overland - Legalectric - Sat, 10/04/2014 - 8:53pm

If you have anything at all in the way of material possessions, odds are that it was brought to you by a trucker, or the pieces you made it with were brought to you by a trucker.  If you eat, unless you grew it on your own, odds are it was brought to you by a trucker.

There’s always been a truck driver shortage, despite yahoos like Rick Brandt at W&S (that’s Wicked & Sadistic) saying, “The driver is the most easily replaceable part of a truck.”  Now, it’s worse.  The Hours of Service rules are tighter — you read these and let me know if you can comply!  Plus trucks are computerized, meaning logs are on the computer, if the truck is rolling down the road, the computer says you’re driving and you can only do so much of that in a day.  Insurance companies are probably more strict about who companies can hire, what kind of driving record means rejection.  And as always, it means being away from home so long that home becomes your truck.

In today’s STrib:

Trucking firms, short of drivers, are stretching to find more

On the flip side, pay is more than twice what it was as Reagan deregulated trucking in 1983.  And trucks are nothing like the cabovers with arm strong steering and hockey puck suspension of that era — nowadays, everyone’s got a hood and a rumpus room, usually a fridge, and of course the aforementioned computer which isn’t exactly programmed for fun or enlightenment, just work.  Fuel mileage has also changed, where 7 mpg is now not that unusual, and you won’t see the black clouds of eye-stinging emissions, what with low sulphur fuel and “Diesel Emissions Fuel” to further limit sulphur output.  Loads are better, with shipper load, and mostly receiver unload and when they want it broken down, lumper fees are paid without a hassle.

Still, “easy” as it is, it makes for a long week…


Categories: Citizens

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