How to Fight Fair Use Fear, Uncertainty, and Doubt: The Experience of One Open Educational Resource

From The Journal of Copyright in Education and Librarianship:

At the launch of one of the early online open educational resources (OER) in 2002, the approach to addressing copyright was uncertain. Did the university or the faculty own their material? How would the third-party material be handled? Was all of its use considered fair use under Section 107 of the U.S. Copyright Act (Title 17, United States Code) because of its educational purpose? Or was permission-seeking necessary for this project to succeed and protect the integrity of faculty and university? For many years, this OER was conservative in its approach to third-party material, avoiding making fair use claims on the theory that it was too risky and difficult to prove in the face of an infringement claim. Additionally, being one of the early projects of its kind, there was fear of becoming a target for ambitious copyright holders wanting to make headlines (and perhaps win lawsuits). It was not until 2009 that the Code of Best Practices in Fair Use for OpenCourseWare was written by a community of practitioners who believed that if fair use worked for documentary film makers, video creators, and others (including big media), it worked in open education as well. Once this Code was adopted, universities and institutions were able to offer more rich and complete course content to their users than before. This paper explains how it happened at this early open educational resource offering.

Link to the rest at The Journal of Copyright in Education and Librarianship

PG says that whenever a group of people get together to create something – a book, a collection of stories, a computer program, a mural, etc., etc., someone should think about copyright in the finished project.

If the group is going to make their creation free to all the world forever and ever, one place to locate decent licensing agreements at no charge is Creative Commons.

Creative Commons was established about twenty years ago to “build a vibrant, collaborative global commons,” mostly, but not completely online. The principal original goal was to encourage an open internet where information and knowledge was available with no strings attached for anyone who could use a device that accessed the internet.

In connection with this goal, the organization promulgated a collection of “free, easy-to-use copyright licenses that provide a simple, standardized way to give your permission to share and use your creative work— on conditions of your choice.”

If you go Here, the Creative Commons website walks you through a quite-nice set of information and questions that lead a visitor to the Creative Commons license that will work the best for them if they want to share their creation free.

One important caveat – The Creative Commons licenses all include you making your work available to the rest of the world without the rest of the world having to pay you anything for your creations.

If you want to exert control over your creation in any material way beyond being mentioned as the creator or one of the creators in some manner a Creative Commons license is not what you want. If you want to make certain you get paid in some manner for your creation, a Creative Commons license is not what you want.

You’ll have to talk to an attorney.

Regarding the OP, the ironic thing about the creators of Open Courseware at MIT and others institutions of higher education could, at no cost to themselves, contracted the university attorney.

Every major institution of higher education and a great many not-so-major institutions (in the United States at least) has a university or college attorney who is supposed to help make sure the faculty don’t do something that’s legally stupid.

For even the dimmest of university counsel, a project whereby a group of university employees to get together with a bunch of people all over the place to create a computer program with lots and lots of information in it would have triggered a call to outside Intellectual Property Counsel who could have saved the project the sorts of problems mentioned in the OP.

6 thoughts on “How to Fight Fair Use Fear, Uncertainty, and Doubt: The Experience of One Open Educational Resource”

  1. This is all fine and good if you control the system being used to distribute your content (and remember that fair use is a USAian concept and that foreign equivalents may be more restrictive).

    However, the systems available to many of us are using – or being encouraged to use by the EU – automated pattern matching systems which neither know nor care about fair use. The OP’s example of using film clips for criticism (or review) is clearly fair use – and equally is fair dealing in the UK – but trying to use the wrong# studio’s clips in film criticism will still get your video taken down, and good luck with your attempts to argue that you’ve not infringing (hint: YouTube really doesn’t care whether content matching stamps on fair use).

    # some studios are reasonable others will come down on you like a ton of bricks.

  2. With all due respect, the CCL is not a license; neither is the Gnu equivalent. They do not positively grant rights; they instead constitute covenants not to sue so long as one follows all of the conditions.

    That’s not an entirely bad thing, but it does have pitfalls that a license doesn’t… such as that a covenant does not necessary bind the successor in interest to a grantor for a new (but otherwise complying) use in the same way as a true license does. To use one notorious example from the software world (serial numbers filed off because it’s still in active litigation nearly a decade and a half later), a CCL 2.0 license for SuperUtility posted by Joe Programmer as open source won’t help much after Joe Programmer goes to work for BigTech… and BigTech updates SuperUtility to actually work with 32-bit operating systems, not to mention closes a massive security hole, but now not under a CCL 2.0 license. There’s only one winner when this sort of thing happens: The lawyers.

    • Sorry, the GPL IS a license. You don’t sue someone in court for violating the GPL, you sue them for using your copyrighted material without a license. The only license they can claim is the GPL, and if they claim that, you point out that they are violating the license.

      what do you think constitutes a license?

      A license says that you can use the copyrighted material if you follow the rules of the license. That license can be ‘pay money’ or it can be ‘share what you derive from it)

      Joe Programmer can only make super-utility proprietary if there are no other contributes to the code. As soon as there are other (non-trivial) programmers, ALL of them would need to agree to re-license their code before someone could put it under a different license.

      So beware of programs with only a single programmer (even ignoring the re-license issue, if there is only one programmer, what happens when they have other priorities, say kids and don’t want to spend time on it any more), and beware of programs that require that you license any contributions to them in a way that allows them to be re-licensed without your approval.

      (as an aside, this is why the GPL is better than BSD, BSD code can be re-licensed without your approval)

      • David, we’re going to have to agree to disagree. Just like calling the license an author grants to a publisher a “sale” doesn’t make it a “sale” (and subject to UCC Article 2), calling the GPL a “license” doesn’t make it a license when its operative terms are a covenant not to sue. It’s a very subtle distinction in practice… until any of the several predicate conditions (most prominently, as I noted, the successor-in-interest problem) arise to make the distinction meaningful.

        In practice, for authors, it may not make an awful lot of difference. Until what one is doing is at the edge of fair use, and BigMedia steps in due to a derivative work instead of BigAuthor. Cf., e.g., Warner Bros. Ent. Inc. v. RDR Books, 575 F.Supp.2d 513 (2008). There wasn’t an actual GPL at issue in that case; had there been, Warner would have been entitled to repudiate it. That’s not a license; it’s a covenant not to sue.

        That also leaves aside the question of whether the grantor of GPL permission is allowed to publicly criticize a particular use of the material in question. Since the grantor is almost certainly allowed to do so — but the grantor of a license isn’t — that’s another 20gm weight on the scale toward “covenant not license.”

        This is all technical stuff that seldom comes to pass. I get irritated when people choose a “simple term that is easy for the unsophisticated to comprehend” because it’s better marketing than being accurate — and there’s a lot of e-mailed correspondence for both the CCL and GPL that demonstrates that’s what they were doing. “Covenant not to sue,” after all, is three words where one will do, and therefore exactly what one would expect of lawyers and not forward-thinking techies. (I was one of the latter in the 70s and have the soldering scars to prove it.)

        My real point is that calling it a “license” instead of a “covenenant” (or “limited permission,” an alternative that was rejected because it didn’t sound expansive enough) misleads those who most need to understand their position — those whose process or product is at the edge. The disturbing parallel to how calling a publishing license a “sale” misleads authors on their audit rights (among other things) and on what happens in a bankruptcy proceeding (and how those contracts are supposed to be treated by a bankruptcy proceeding, but almost never are because they’re labelled “sale” and not “executory license”) is for another time. But that parallel counsels against adding more such instances.

        • what is a license other than permission to do something that would otherwise be forbidden and enforced with a lawsuit?

          This is the first I’ve heard anything about the license granter not being allowed to criticize use. Where in the license does it say that?

          sale vs license is very significant because the sale exhausts the seller’s rights and the buyer can then do whatever they want with that copy. I don’t see where a license grants you anything that a promise not to sue doesn’t

          I also don’t see how a promise not to sue can be withdrawn for a particular version of something (if you own all the rights, you can release a new version without that promise, but someone who got a copy of the old version, along with your promise not to sue cannot possibly be liable if you change your mind later and they don’t know about it)

  3. Just because it doesn’t appear on the face of an agreement doesn’t mean it’s not part of the agreement. Very few contracts of any kind, for example, include the “duty of good faith and fair dealing” (which cannot be disclaimed) in the body of the contract; but it’s a part of the contract.

    For licenses, that “duty of good faith and fair dealing” means that the licensor cannot criticize the licensee’s conduct on any ground other than commercial (didn’t pay the license fee on time, exceeded the scope of the license, etc.). If they do, they jeopardize their rights to obtain remedies for those commercial rights by having unclean hands. (And then there’s the Lanham Act and unfair-business-practices law, which varies widely and is very fact-specific.) A covenant not to sue, however, doesn’t have these restrictions, because that’s literally all it is.

    Getting into the distinctions among “UCC Article 2,” “UCC Article 2A/B,” “common law of contracts,” and “non-US law” is much too far for this forum. My point remains: Neither the CCL nor the GPL is actually a license, but a covenant not to sue. That doesn’t meant they’re not useful; it only means that they’re not what they appear to call themselves.

Comments are closed.