fair use

Book publishers love that libraries can act as free marketing venues, introducing readers to new authors and keeping them focused on books.  But publishers don’t like it when libraries act as commons – that is, when they promote easy access and sharing of knowledge.  A successful commons may modestly limit a publisher’s absolute copyright control – and even minor incursions on this authority must be stoutly resisted, publishers believe.     

One of the more egregious such battles now underway is a lawsuit filed by Harvard Business School Publishing, John Wiley and the University of Chicago Press against the Institute for the Study of Coherence and Emergence.  ISCE  is a small, nonprofit membership group that “facilitates the conversation between academics and business people regarding social complexity theory, particularly the implications for the management of organizations.” 

The focus of the publishers’ lawsuit is ISCE’s virtual library of 1,200 books.  May ISCE self-digitize and lend its virtual books to its members on a one-usage-at-a-time basis, for private, educational, non-commercial purposes? 

The publishers say no, and are seeking to establish their legal authority to shut down such unauthorized “reproduction, display and distribution” of the books.  But ISCE counter-claims that the fair use and first-sale doctrines of copyright law give it the legal right to lend its virtual books.  (Fair use is the legal doctrine of copyright law that allows excerpts to be shared noncommercially.  The first-sale doctrine prohibits the seller from controlling what a consumer does with a book or DVD after it is purchased, such as renting it, lending it or giving it away.)  ISCE claims, in addition, that libraries are entitled to special-use privileges under copyright law, which apply in this instance.

Wow! The save-the-Internet protests by Wikipedia, Google, Reddit, Boing Boing and hundreds of other websites marks a watershed moment in the evolution of networked political expression. Millions of Internet users learned that Congress actually can cripple the open Internet in the manner of authoritarian regimes, albeit in the name of copyright law.

Such mass politicization is powerful stuff. Within 24 hours, Senate Majority Leader Harry Reid postponed a scheduled vote on the “anti-piracy” Web censorship legislation known as SOPA and PIPA (Stop Online Piracy Act and Protect IP Act). The abrupt turnabout was widely regarded as a face-saving move for the benefit of Judiciary Committee Chairman Patrick Leahy, a key sponsor of the bill.

Although protests had been building for weeks, the one-day shutdown of popular websites suddenly made visible a huge, alternative universe of citizens who are usually ignored in Washington, D.C. Suddenly the Old Guard could not broker their self-serving, insider deals in the shadows. Suddenly the Web demonstrated its power as a new sort of theater for organizing and representing the public to confront conventional governance.