Unwelcome Intervention?

Why would the U.S. Justice Department want to get involved in the appeal by publishers of a landmark ruling by a federal judge on the issue of e-reserves in college and university libraries?

That's the question being asked by many observers -- and more than a few on the college library side of the debate are upset that the Obama administration would even consider getting involved on behalf of the publishers. Given the administration's general support for the idea that technology is a tool to improve education, some librarians are stunned that the Justice Department might back the publishers' appeal.

To date, the Obama administration hasn't officially joined the appeal by publishers of a May ruling that rejected the vast majority of publishers' complaints of copyright violations by Georgia State University in how it uses e-reserves. While the ruling found a few instances in which it said Georgia State did violate publishers' rights, the judge's determination that most of what Georgia State was doing was acceptable was a huge relief to colleges and universities nationwide, which similarly rely on e-reserves for their students.

What the Justice Department did that caught everyone by surprise was file a brief asking for an extension on the time available to file on the publishers' appeal to the U.S. Court of Appeals for the Eleventh Circuit. The request for an extension doesn't state the department's view on the case, but it seems fairly clear that both parties believe the department may back the publishers. It is customary when groups ask for such extensions for them to seek the blessing of those facing off in court, and while the publishers have said that they are fine with the extension, Georgia State has said that it is not.

The university said it had no comment on the Justice Department action. And a spokeswoman for the Association of American Publishers said that she did not know what the department was planning to do. The Justice Department did not respond to an inquiry about its plans.

Some observers of the case said that they were shocked and angry that there was even a chance that the department would back the publishers in the case.

"It is flat out ridiculous that the Obama Administration may be supporting the publishers here," wrote Mike Masnick, editor of the blog Techdirt. "Two out of the three publishers are foreign publishing giants, and it would be supporting them against a public university library tasked with helping to educate students. The entire purpose of copyright law is supposed to be to promote the progress of learning." (The suit was brought by Cambridge University Press, Oxford University Press and Sage Publications -- with backing from the publishing industry.)

"And yet ... these publishers, along with the U.S. Copyright Office and (perhaps) the DOJ, would like to ignore all of this, and reject fair use in such public learning centers? It is ridiculous. Oh, and did we mention that the lawsuit by these publishers is really being funded by the Copyright Clearance Center (who, shockingly, would be in charge of collecting fees for such uses...) and the [Association of American Publishers]? If the Obama Administration wanted to appear any more in the pocket of 'Big Copyright' and against the public interest when it comes to learning and education, I'm not sure of any better position to take."

Jonathan Band, a Washington lawyer who is an expert on copyright law, said via e-mail that his "suspicion is that the Copyright Office has asked DOJ to file an amicus brief in support of the publishers. Hopefully other agencies, e.g., the Department of Education, will weigh in and advise the DOJ that supporting the publishers would be a bad idea from a political, public policy, and substantive legal point of view."

Tracy Mitrano, director of IT policy and the Institute for Computer Policy and Law at Cornell University (and a blogger for Inside Higher Ed), said she was very concerned about the possibility that the administration might back the publishers in the case. Mitrano, however, was less surprised than some others at this prospect. While the Obama administration "likes to talk about technology" and its role in education, she said, officials seem to have "a bright line between technology and information."

The administration, despite its support for education technology, "does not have a good track record when it comes to copyright reform in a way that would make the law more balanced, or would allow for greater access," she said. "They appear to still be listening way too much to content owners and the content industry," she said.

Barbara Fister, a librarian at Gustavus Adolphus College and a blogger for Inside Higher Ed, said "I can't imagine why the Department of Justice would oppose what a lower court considered a fair use and support the plaintiffs, who were trounced out of court by a thoroughly researched decision." She said the issues in the case matter to all colleges.

"For some reason uses that were patently fair in print are being called [by publishers] unfair in a digital era, even when it's the very same kind of use," she said. "This is bad for education and ultimately bad for publishing scholarship. If faculty can only teach from material that has to be paid for, they'll start looking for material that is not pay-per-use and scholars' work will have an ever smaller audience. It's not as if there's a lot of money yet to wring out of students or libraries."