P2P Copyright Network at UNC-Chapel Hill

1. P2P COPYRIGHT NETWORK
MAY 2016
FIRST SALE EXCEPTION, LIBRARY EXCEPTIONS & A FRAMEWORK FOR
ANALYZING A COPYRIGHT PROBLEM

2. First Sale Exception: The Doctrine of
“Exhaustion”
• Distribution right is exhausted after the first sale
• Bobbs-Merrill case and then later codified in 17 USC 109
• The owner of a particular copy or phonorecord lawfully made under
this title, or any person authorized by such owner, is entitled, without
the authority of the copyright owner, to sell or otherwise dispose of
the possession of that copy or phonorecord.
• Other clauses in Section 109 allow libraries to lend sound recordings
and computer software.

3. Mr. Kirtsaeng’s Difficulties
Kirtsaeng v. Wiley, 2013

4. Facts in Kirtsaenghttp://www.flickr.com/photos/30898003@N08/4258328532 Photo by mksavage Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)
• Grad student from Thailand
• Relatives bought textbooks
overseas & Kirtsaeng resold in
U.S.
• Textbooks were intended for
foreign market
• Liable for copyright
infringement—imported without
rights holder’s permission

5. Issue: How do Section
602(a)(1) of the Copyright
Act, which prohibits the
importation of a work without
the authority of the copyright’s
owner, and Section 109(a) of the
Copyright Act, which allows the
owner of a copy “lawfully made
under this title” to sell or
otherwise dispose of the copy
without the copyright owner’s
permission, apply to a copy that
was made and legally acquired
abroad and then imported into
the United States?
(http://www.scotusblog.com/case-
files/cases/kirtsaeng-v-john-wiley-sons-inc/)
Supreme Court Granted Certiorari
http://www.flickr.com/photos/22522518@N06/3001725500 Photo by Ancrew Deci Attribution-NonCommercial-ShareAlike
2.0 Generic (CC BY-NC-SA 2.0)

6. Section 602:
Infringing Importation or Exportationhttp://www.flickr.com/photos/11831132@N00/134329177 Photo by Logan Ingalls Attribution 2.0 Generic (CC BY 2.0)
• Importation of copyrighted work
“without the authority of the
owner…under this title…is an
infringement.”
• Circuits split on how to interpret
• Libraries get limited special
treatment under 602

7. Parallel Markets, Quality King, Costco
• Parallel markets have increased
• Quality King: “round trip” sale &
distribution limited by Section
109
• Costco—Supreme Court tied in
2010

8. Library Copyright Alliance Amicus Brief +
Many Other Unlikely Allies
• Wording & meaning of the
statutes
• Policy concerns
• Other alternatives (none of them
great)
• Used bookstores
• Ebay

9. OTHER LIBRARY EXCEPTIONS
• Interlibrary loan
• Reproductions for preservation
and private study
• A few other scattered
exceptions, like one that allows a
librarian to break DRM in order
to evaluate buying certain
products.
Photo courtesy Harvard Library. Preservation Services.
http://library.harvard.edu/preservation/conservation-treatment-preservation-advice

10. Interlibrary Loan
• Also specially codified apart from first sale
• Should not substitute for a subscription
• Other quantities & maximums are not law
• Suits against NLM and Texaco
• Result: “gentlemen’s agreement + the CONTU guidelines
• Often limited contractually for digital material

11. INTERLIBRARY LENDING: WHAT DOES COPYRIGHT
LAW SAY?
NO SYSTEMATIC REPRODUCTION
The rights of reproduction and distribution under this section extend to the
isolated and unrelated reproduction or distribution of a single copy or phonorecord
of the same material on separate occasions, but do not extend to cases where the
library or archives, or its employee—
(1)is aware or has substantial reason to believe that it is engaging in the related or
concerted reproduction or distribution of multiple copies or phonorecords of the
same material, whether made on one occasion or over a period of time, and
whether intended for aggregate use by one or more individuals or for separate use
by the individual members of a group; or
(2)engages in the systematic reproduction or distribution of single or multiple
copies or phonorecords of material described in subsection (d):Provided, That
nothing in this clause prevents a library or archives from participating in interlibrary
arrangements that do not have, as their purpose or effect, that the library or
archives receiving such copies or phonorecords for distribution does so in such
aggregate quantities as to substitute for a subscription to or purchase of such work.

12. Special Library Exceptions for Preservation
and Replacement
• Painfully codified in Section 108
• Efforts to revise and modernize
have been unsuccessful
• Sometimes really useful, such as
for reproducing entire works for
private study when a copy is not
available at a reasonable price
• But often, more confusing or
restrictive
• Fair use “savings clause” in Section
108
• Subject of Hathi Trust litigation
Section 108 study group

13. SECTION 108 CONTROVERSIES
Section 108’s Fair Use Savings Clause
• Nothing in this section…in any way
affects the right of fair use as provided by
section 107
• In the Hathi Trust litigation, plaintiffs attacked
its meaning and intent.
• Courts disagreed: “Citing the savings clause, the
Second Circuit stated that "we do not construe §
108 as foreclosing our analysis of the Libraries'
activities under fair use...." HathiTrust at *4, n.
4. Thus, the decision holds unambiguously that
libraries may take full advantage of the fair use
right.” Jonathan Band What Does the Hathitrust Decision Mean for
Libraries http://www.llrx.com/features/hathitrust.htm
108 Revisions: A Threat or a Promise?
• Section 108 study group
• 3 years’ work
• Issued report March 2008
• Maria Pallante declared intent to revise in
2012
• Many library groups opposed
• Copyright Office symposium on revising
Section 108 in 2013
• Karyn Temple-Claggett from the Copyright
Office declared intent to revise in March 2016

14. • The library’s collection is open to the public OR available to outside
researchers
• Copying and distribution is NOT for any purpose of direct or indirect
commercial advantage
• Each instance of copying is isolated from and unrelated to any prior
copying and includes no more than one copy, except three copies are
allowed for preservation or replacement purposes.
• The copy includes the “notice of copyright” appearing on the original, OR if
no notice can be found on the original, a legend “stating that the work may
be protected by copyright.”
• The material copied and distributed is NOT a musical, sculptural, graphic,
motion picture, or audiovisual work (but this last rule is waived for
preservation and replacement copying)
Section 108: The “Ground Rules” for
Reproduction

15. Section 108: Reproduction by supervised
copying at the patron’s request
Articles and portions of a work
• Meet the Ground Rules
• The copy is made from the collection at the library from which the user requests
it OR from another library’s collection such as through interlibrary loan
• The copy becomes the user’s property
• The library has no information that the copy would be used for other than private
study, scholarship, or research
• The library displays a copyright “warning” notice where orders are accepted and
on order forms
And in addition, if the copy is a large portion or entire work…
• The library has determined through a reasonable investigation that a copy of the
original copyrighted work cannot be obtained at a “fair price.”

16. • Meet the Ground Rules
• The three copies are solely for preservation and replacement, OR for
deposit for research use in another qualifying library
• The copyrighted work is currently in the collection of the copying
library
• “Digital” copies are not distributed or made available to the public
outside of the “premises” of the library or archives
Section 108: Copying unpublished works still in copyright for
preservation & replacement

17. • Meet the Ground Rules
• The three copies are solely for replacement of a work that is “damaged,
deteriorating, lost, or stolen, or if the existing format of the work has
become obsolete.”
• The library has determined through reasonable efforts that an unused
replacement for the original work cannot be obtained at a “fair price.”
• “Digital “copies are not distributed or made available to the public outside
of the “premises” of the library or archives “in lawful possession of such
copy.”
• Note: A format is obsolete IF the machine or device that makes the work
usable is “no longer manufactured” or “reasonably available in the
commercial marketplace.”
Section 108: Copying published works still in copyright for
preservation & replacement

18. • Meet the Ground Rules
• The library concludes that the work is within the last 20 years of copyright
protection
• The work is copied, displayed, distributed, or performed for preservation,
scholarship, or research
Unless the library first determines by “reasonable investigation” that…
• The work is subject to “normal commercial exploitation.”
• A copy can be obtained at a “reasonable price.”
• The owner provides “notice” that either of the previous conditions apply.
Section 108: Copying Published Works With Copyright Expiring
in 20 Years or Less

19. Want to Learn More About Section 108?
See these works by Dave Hansen, UNC Law Library
• Section 108 Cases
http://drhansen.web.unc.edu/library-copyright-materials/section-
108/section-108-cases/
• Copyright Reform Principles for Libraries, Archives, and Other
Memory Institutions, Available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2466091## (for
the moment)

20. Five questions for analyzing a copyright
problem
1. Is the work covered by copyright?
2. Is there a specific exception in copyright law that covers my use?
3. Is there a license that covers my use?
4. Is my use covered by fair use?
5. Do I need permission from the copyright owner for my use?

21. Keeling v. Hars

22. Can you get kicked off YouTube for spoiling
Game of thrones?