Here are the legal fundamentals.  One of the rights of a copyright owner is the right to distribute copies of the work to the public.  That right is significantly tempered by the “first-sale doctrine” in Section 109(a) of the Copyright Act (also known as the doctrine of exhaustion).  In summary, that rule provides that once a particular copy of a copyrighted work has changed hands, possession of that copy may be further transferred.  In other words, the copyright owner controls only the first sale, and cannot control the downstream selling, lending, renting, and other dispossession of that copy of the work.  Hence, a bookstore can sell a book, the customer can resell it online, the new owner can donate it to a library, and the library can let a reader check it out.  Without the rule of first sale as a copyright exception, those downstream transactions could be unlawful distributions.

That statute, however, applies the doctrine only to works “lawfully made under this title,” a reference to Title 17, the U.S. Copyright Act.  The argument by the copyright owners was that these word mean that the books can be bought and sold without permission only if the physical books had been manufactured only where Title 17 applies, i.e., only within the United States.  Because Kirtsaeng had been buying and selling books made in Thailand, his enterprise drew a lawsuit.  The lower courts agreed, finding that Kirtsaeng infringed the distribution right and holding him liable for statutory damages.

These rulings sent a chill through the library community.  Libraries are arguably engaged in the distribution of copyrighted works whenever they acquire materials for the collections and permit patrons to check them out.  Distributions are often a core function of libraries, and many works in library collections are made outside U.S. borders.  In fact, everyday life in the U.S. is rich with foreign made works that could be hamstrung by the decisions of the lower courts: American novels outsourced for printing, foreign movies on DVDs, letters mailed home from Europe, software inside an iPod or mobile phone, semiconductor code on computer chips, and even the computer programs embedded in the workings of a Honda, Toyota, Volkswagen, or other imported car.  Regardless of where the copyright work originated, the constraint applied if the specific copy had been produced outside American borders.

The Kirtsaeng case was addressing the same statutory language in the context of importation of copyrighted works, and the Court spelled out the legal questions—and answers—in simple and clear terms:

"Putting section numbers to the side, we ask whether the “first sale” doctrine applies to protect a buyer or other lawful owner of a copy (of a copyrighted work) lawfully manufactured abroad.  Can that buyer bring that copy into the United States (and sell it or give it away) without obtaining permission to do so from the copyright owner? Can, for example, someone who purchases, say at a used bookstore, a book printed abroad subsequently resell it without the copyright owner’s permission?

"In our view, the answers to these questions are, yes.  We hold that the “first sale” doctrine applies to copies of a copyrighted work lawfully made abroad."

The opinion of the court was drafted by Justice Stephen Breyer and joined by five of the eight other justices.  It is an especially lucid and well-conceived argument.  Breyer takes to task the simple logic of the statutory language, the relevant history of American copyright law, and the general notion of jurisprudence to avoid geographical delineations.

One of the most persuasive sections of Breyer’s opinion is his forecast of the implications of ruling the other way.  He cites a brief filed by the Library Copyright Alliance (comprising the American Library Association and others) making the point that libraries hold an estimated 200 million copyrighted books that were produced in foreign countries.  Without tracking rightsholders and securing permissions, libraries would be barred from lending these enormous segments of the collections.  Other parties noted the software embedded in foreign computers and cars, and that copyrights that are part of diverse products and even bottle labels imported into the U.S.  A ruling in favor of the publishers would leave trillions of dollars of works subject “to the disruptive impact of the threat of infringement suits.”

In similar fashion, the Court noted that several other provisions of the Copyright Act also repeat the clause “lawfully made under this title.”  For example, a ruling otherwise would mean that a museum could not display a copyrighted painting by Picasso, because the provision allowing displays (Section 109(c)) would be limited to works made within the geographic reach of U.S. law.  Similar language would constrain showing foreign films in a classroom (Section 110(1)) and enjoying Japanese video games in an arcade (Section 109(e)).  In listing these possible “horribles” that might result, the Court acknowledged the sparse litigation but that could be because rights under the law were only now becoming settled.  Moreover, the Court did not want to interpret the law in a manner that created violations to be systematically overlooked:

"Finally, the fact that harm has proved limited so far may simply reflect the reluctance of copyright holders so far to assert geographically based resale rights.  They may decide differently if the law is clarified in their favor.  Regardless, a copyright law that can work in practice only if unenforced is not a sound copyright law.  It is a law that would create uncertainty, would bring about selective enforcement, and, if widely unenforced, would breed disrespect for copyright law itself."

Breyer concludes his opinion with a detailed examination of policies underlying the law and a carefully reasoned examination of earlier rulings.  Justices Kagan and Alito filed a concurring opinion pointing up the difficulties in the importation laws, and suggesting that Congress could modify the import restrictions without altering the first-sale doctrine.  Justice Ginsburg, joined by Justices Kennedy and Scalia, dissented.

The entire case, and the diverse views of the justices, offer ample fodder for evaluation and critique, but one result is clear: Libraries, bookstores, and citizens need not limit their rights to buy, sell, and lend copyright works based on arbitrary fact of where the specific object might have been manufactured.  On the other hand, we might contemplate some possible reactions to the Kirtsaeng decision and the creation of an “international first-sale” principle:

The Growth of Licensing.  Libraries and consumers are increasingly acquiring ebooks, music, and movies under the terms of licenses, rather than as purchases.  Under the doctrine of first sale, only owners of particular copies are allowed to make the downstream transfers of possession.  Licenses, by contrast, often purport to grant rights of use without conveying ownership.  Licenses will likely become more prevalent as a means of control.

Electronic First Sale.  A debate has raged for years about whether a digital file may be transferred to a new owner under the doctrine of first sale.  The statute itself is not limited by technology, but when a file is transferred, it is actually reproduced.  If the transferor promptly deletes the file, is that functionally an exercise of the first-sale right?  This case gives no answer, but its strong endorsement of allowing transfers of copyrighted works may well bolster the argument for solving this dilemma.

Bills in Congress.  The Supreme Court included in its ruling some discussion of the constitutional objectives of copyright, but this decision is a matter of statutory interpretation.  As a result, Congress can change the law.  The easiest congressional reaction may be to accept the suggestion of Justice Kagan and amend the importation law.  Thus, an entrepreneur such as Kirtsaeng might not be able to import the books, but once works are in the country, citizens, libraries, and stores would have the protection of first-sale rights.

International Treaty Negotiations.  Restrictions on the first-sale doctrine have been part of the negotiations of at least one multinational treaty, a regional trade agreement in discussion known as the Trans-Pacific Partnership.  The parties will likely have to revisit the issue.  More serious, if the agreement does call on countries to restrict transfers of ownership of foreign-made works, Congress will have to amend the statute in order to comply with the treaty.  The more that Congress has to change the law, the less likely that the U.S. can comply.  The negotiators will have to rethink their strategy.

A few more thoughts about libraries and the Kirtsaeng case are in order.  First, libraries deserve enthusiastic credit for helping persuade a majority on the Supreme Court.  The Court cited the brief filed by the Library Copyright Alliance, and libraries were in an excellent position to point up some hazards of the lower court rulings.  Second, we cannot stop thinking about those licenses.  We should expect to see more license agreements for acquisition of materials, in hard copies or as digital files, to include restrictions on transfers of ownership.  This is a good time to reiterate some general principles: read and negotiate carefully, and resist whenever possible restrictive terms.

The Kirtsaeng case is an important and constructive development in the law.  Obviously, many interested parties will not be pleased with the ruling, but the decision is a victory for practical and well-reasoned interpretations of copyright law.  The outcome of this case is positive in many respects, but most of all the Court interpreted the law to prevent some possibly disastrous outcomes.

Kenneth Crews
March 19, 2013

When making use of this page under the terms of the CC license, please include this form of attribution: "Used under a Creative Commons BY-ND license from Kenneth D. Crews."  If your needs for the material are outside the scope of the license, please consider fair use or simply asking for permission.

Before going further, a bit of caution and disclosure.  First, any prediction about the decision on appeal would be reckless, and this case could conceivably go the U.S. Supreme Court.  The final word is far ahead.  Second, this essay focuses on only salient aspects of the fair use analysis.  The ruling extended to nearly 350 pages and encompassed much more than copyright; a short blog post cannot capture the depth and nuance of the decision.  Third, I served as the expert witness for the defendants, submitting two written reports (links here and here) and testifying over a period of three days during the trial in May and June of 2011.  My role was to testify on relevant matters as I understood them in my independent capacity.  I write these comments in that same spirit.  This essay is solely my views, and does not necessarily reflect the views of any parties or my employer.

Why is the law the winner?  When breaking new ground, one can easily dig a hole to nowhere.  Although courts have handed down hundreds of rulings on fair use, they had never before ruled on the law as exercised in a true nonprofit educational context.  The Georgia federal court thus faced the extraordinary opportunity and challenge to shape future thinking about copyright and for education in many ways beyond just electronic reserves at only one university.  The judge tunneled carefully and thoughtfully.

The fair use statute sets forth factors that had been developed through many decades of judicial decisions:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Further, the opening sentence of the statute affirms explicitly that fair use is for purposes such as teaching, research, and scholarship.  Many of the following key principles of fair use from the GSU decision arise in the context of that language and the four factors.

The First Factor and Nonprofit Education:  Reckoning with the fact that this was the first case to arise in the truly nonprofit educational context, the court was persuaded to hold the “purpose” factor firmly in favor of fair use:  “The language of § 107 itself and the Supreme Court’s opinion in Campbell compel the decision that the first fair use factor favors Defendants.  This case involves making copies of excerpts of copyrighted works for teaching students and for scholarship, as specified in the preamble of § 107.  The use is for strictly nonprofit educational purposes as specified in § 107(1).  The fact that the copying is done by a nonprofit educational institution leaves no doubt on this point.”  The court distinguished this case from earlier decisions involving Kinko’s and other commercial defendants, noting that “Georgia State is a purely nonprofit, educational institution and the excerpts at issue were used for purely nonprofit, educational purposes. . . .”

The First Factor and Transformative Uses:  A transformative use generally receives a more favorable treatment under fair use.  However, the court looked to a 1994 decision from the U.S. Supreme Court to conclude that the defendants did not need to argue the transformative issue.  “While Supreme Court decisions in other factual contexts have emphasized the importance of the transformative nature of the use in applying this factor, in Campbell, the Supreme Court said the following in discussing the first fair use factor: ‘The obvious statutory exception to this focus on transformative uses is the straight reproduction of multiple copies for classroom distribution.’”  Where did this “obvious” exception come from?  The language of the fair use statute itself.  It states that fair use can allow “multiple copies for classroom use.”  Straight copying is explicitly allowed; some copying may indeed be transformative, but even when it is not, fair use can absolutely still apply.

The Third Factor and Educational Objectives:  This factor calls for evaluation of the amount and substantiality of the portion copied or used.  The court resisted strict quantity measures, noting the importance of selecting whole chapters, rather than “truncated paragraphs,” to serve an educational purpose.  “However, the selected excerpt must fill a demonstrated, legitimate purpose in the course curriculum and must be narrowly tailored to accomplish that purpose.”   The flexible standard, crafted to serve educational needs, holds users to limits and allows fair use to fulfill basic public interest objectives.

The Third Factor and the Classroom Guidelines:  The plaintiff publishers argued that Georgia State should be held to the quantity limits of the “Classroom Guidelines” from 1976.  Those negotiated standards set an excruciatingly low and convoluted measure of the length of an excerpt that may be copied from a book.  The court reviewed the origins of the guidelines, the concerns about them, and the fact that they are minimum standards.  The court rejected the guidelines on multiple grounds.  First, they are only minimum standards and not the legal definition of fair use.  “Plaintiffs do not explain their decision to seek acceptance of the minimum standards as the maximum standard.”  Second, the guidelines set “numerical caps.”  “This brightline restriction stands in contrast to the statutory scheme described in § 107, which codified a multi-factorial analysis in which no factor is dispositive.”  Once again, the court was building a concept of fair use that is flexible and that is driven by all four factors together.  The court was also rejecting guidelines that never have been binding, bear little relationship to the law, and have for decades created needless distraction from the quest for an accurate understanding of fair use.

The Third Factor and the One-Time Use Limit:  Policymakers and attorneys long have debated whether fair use permits a copy of a work on reserves for only one academic term.  The theory is that any subsequent use necessarily has lead time, allowing opportunity to seek permission.  This restriction has proved to be an enormous hindrance on reserve services, and it has created an arbitrary demarcation of fair use.  The plaintiffs urged the court to adopt the restriction.  The court rejected it flatly: the “idea that professors be prohibited from unlicensed use of the same chapter from one academic term to the next is an impractical, unnecessary limitation.  The right approach is to select a percentage of pages which reasonably limits copying and to couple that with a reasonable limit on the number of chapters which may be copied.”

The Third Factor and “Decidedly Small”:  Scrutiny of this case often gravitates to the formula that the court set forth in determining whether the amount used is allowable.  After carefully exploring the equities and flexibilities of fair use, the court offered these guideposts:  “Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three. . . .  In practical effect, this will allow copying of about one chapter or its equivalent.  Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three.  Excerpts which fall within these limits are decidedly small, and allowable as such under factor three.”  Did the court contradict itself by crafting a quantified standard after affirming the importance of flexibility?  I think not.  The court was instead creating an alternative rule for the benefit of instructors, librarians, and others who prefer the assurance of a measured standard.  I have been working with fair use for many years and have seen repeated yearnings for simplicity, even as I advocate flexibility.  The judge in the GSU case was evidently sympathizing with the thousands of instructors and others who need to make repeated decisions about fair use and was giving them a little help.  Without question, she was also preserving flexibility, and 10% was not a cap.  The court even permitted copying of more than 18% of a book under the right conditions.  But if a quantitative measure can help streamline routine decisions, the judge was ready to offer the option.  Viewed in this manner, this is not such a bad outcome.  It might even effectively bridge flexible principles of fair use with the practical implementation of policies at educational institutions.

The Fourth Factor and Market Substitution:  The average excerpt of each book evaluated in this case was less than ten percent.  The court resolved that copying ten percent of a book, even repeatedly, would not “cause substantial damage to the potential market” for the original book.  However, the court also looked to whether the making of copies was reasonably licensable, and if the copying might cut into a realistic market.  “For loss of potential license revenue to cut against fair use, the evidence must show that licenses for excerpts of the works at issue are easily accessible, reasonably priced, and that they offer excerpts in a format which is reasonably convenient for users.”  This standard leaves room for fair use.  The court was also protecting copyright owners by emphasizing that denial of payments, when digital permissions are available, harms the value of the copyright and can tip the fourth factor in favor of the copyright owners.

Policy Implementation, Oversight, and Education:  Recognizing that the exercise of fair use would necessarily be an ongoing activity of the university, the court posited a few criteria for policymakers establishing a reserves operation.  “Access shall be limited only to the students who are enrolled in the course in question, and then only for the term of the course.  Students must be reminded of the limitations of the copyright laws and must be prohibited by policy from distributing copies to others.  The chapter or other excerpt must fill a demonstrated, legitimate purpose in the course curriculum and must be narrowly tailored to accomplish that purpose.”  These standards are not unlike provisions found in reserves policies at numerous colleges and universities, and therefore should pose little disruption or surprise.  They are also generally reasonable terms that help assure a robust fair use and good protection for rightsholders.

Although the court’s opinion leaves room for debate and further analysis, the main features of the fair use analysis are well reasoned and move the law for nonprofit education in a constructive and supportable direction.  The federal district judge handed down a thoughtful opinion that articulates sound principles of fair use and dispels multiple misperceptions that had burdened understandings of fair use for many years.  The court’s analysis of the four factors, the rejection of the 1976 guidelines, and the practical means for addressing market effect are just a few examples of the ruling that will be helpful as courts strive to apply fair use in yet other new circumstances in the years ahead.  These principles deserve to be upheld as the 11th Circuit hears this case on appeal.

Kenneth Crews
January 22, 2013

When making use of this page under the terms of the CC license, please include this form of attribution: "Used under a Creative Commons BY-ND license from Kenneth D. Crews."  If your needs for the material are outside the scope of the license, please consider fair use or simply asking for permission.

Wrong Question #1: “Who owns the copyright in my online course?”

Copyright grants instant and automatic copyright protection to many elements of an online course, including explanations of concepts, charts, diagrams, photographs, and more.  Somebody owns the copyrights.  Who is that somebody?  The problem with this question is that copyright law leads only to answers that are often bad for education.  The law only gives somebody the copyright and leaves everyone else with nothing.  Under the general rule of copyright ownership, the instructor or other individual who creates the original works holds title; an alternative rule is that everything is “work made for hire” and the rights are held by the employer university.  Additional possibilities include “joint copyright” or even separate claims to each discrete contribution to the completed course.  Each of these possibilities is a variation on “all-or-nothing” and is almost certain to produce managerial headaches and tension over “mine vs. yours.”

The Better Question #1: “How can we best allocate and manage rights in our online course?”

We should view the copyright in online courses not as a legal assertion, but as a set of rights to be shared and managed.  Rather than leave copyright ownership to a legal answer, universities and their faculty should implement policies and agreements that specifically distribute rights among the interested parties.  Faculty instructors often want the ability to reuse the content of the course in future teaching, research, and publications.  Universities want assurance that they can make continued use of the course for at least a few years, preserving the integrity of academic program planning.  Careful planning also allows consideration of Creative Commons licenses to permit public use of the courses.  The law alone cannot accomplish any of these alternatives.  We must invest the time and effort to develop insightful and constructive policy standards.  By asking the right question, we can get to smarter answers and can avoid the “all-or-nothing” conflicts.

Wrong Question #2: “Does fair use allow me to cut and paste and include a variety of materials into my online course?”

Fair use is unquestionably of enormous importance in teaching—including in MOOCs.  This simple question nevertheless has the defect of underinclusiveness.  A question that is only about fair use overlooks the many other possibilities for properly using in online teaching a richer variety of photographs, artworks, text content, motion pictures, music, and much more.

The Better Question #2: “What are the options for including copyrighted works in an online course?”

Keep all options open—not only fair use.  Here are some of the most important options:

Fair Use.  OK, fair use gets the most attention and may well be most important, but don’t let it overshadow the next points.

Creative Commons.  Course developers have the ability to share their works with CC licenses, and they can enjoy the benefit of using CC materials from others.  Creative Commons is a vital means for owners to grant advance permission for public use of their copyrighted works.  Some CC licenses require only attribution.  Others are limited to noncommercial uses.  Either way, multitudes of publications, photographs, videos, and other works are freed up under CC licenses for MOOCs and more.

Public Domain.  Some works are in the public domain because they did not qualify for copyright protection in the first place—such as works created by the U.S. government.  NASA films and State Department reports can be powerful educational resources.  Many other works are in the public domain because the copyrights expired.  Such older works may not meet all needs, but when they do, they are a rich trove for teaching and the development of MOOCs.

TEACH Act.  Like fair use, this statute is an exception to the rights of copyright owners.  It applies specifically to “transmissions” of educational content or distance learning.  It is detailed and meticulous.  Few universities employ it, but it might deserve another look.

Permission.  You can always seek permission from the copyright owner.  Sometimes it is a bother or comes with a price.  Sometimes it is worthwhile and even necessary.

Good intellectual property management for MOOCs and all distance education initiatives demands thoughtful planning and careful evaluation of alternatives.  It does not happen by accident.  Some universities are already reflecting on these nuances, and experience confirms that the path to effective results starts with the right questions.

I welcome your thoughts.

Kenneth Crews

Disclosure: I have some connection to MOOCs through my university; this essay represents my own views and not necessarily the views of the university or other party.  Thanks for understanding.

Posted: 110912

When making use of this page under the terms of the CC license, please include this form of attribution: "Used under a Creative Commons BY-ND license from Kenneth D. Crews."  If your needs for the material are outside the scope of the license, please consider fair use or simply asking for permission.

In September 2011 a group of authors, with The Authors Guild and other associations, filed a lawsuit against HathiTrust, five major universities, and multiple university officials alleging that the many of the activities of HathiTrust related to the storage and search of full-text digital books was an infringement of copyright.  This week the judge ruled on motions for summary judgment, finding that the retention and use of millions of digital books for purposes of preservation, text search, and accessibility for the visually impaired were within the limits of fair use.  The ruling is enormously important for the continued vitality of HathiTrust, but Judge Baer’s written opinion offers an analysis of fair use that will be helpful in the evaluation of many future projects, especially in the context of libraries, education, and research.

This post is my first review of the 23-page decision.  Other blog posts are hitting different highlights, and I am pitching in the following thoughts for the conversation.

The Covered Activities.  HathiTrust is a digital repository of almost 10 million scanned books, most of them created as part of the Google Books project in partnership with leading research libraries.  Approximately 76% of the books are still in copyright.  At issue in the case are these specific uses: (1) Storing of the scanned book images and text files for preservation; (2) Enabling researchers to conduct word searches of the text files, but the search results only indicate where words appear in the text of books and do not allow viewing of the text; and (3) Facilitating formats of the books to meet the needs of persons who are blind or visually impaired.

Orphan Works.  HathiTrust announced in 2011 that it was soon to embark on an innovative approach to opening the full text of books that are deemed to be orphan works.  The proposal was lauded and criticized, and it may well have been the lightning rod that drew this lawsuit.  However, HathiTrust soon dropped that plan and took no steps to open the full text of books in that manner.  With no current plans to actually launch the orphan works initiative, the court declined to rule on whether it would have been lawful.  We might want to know how the court would rule on issues of orphan works, but getting that issue out of the way allowed the court to focus on uses that are much more likely to be within fair use: preservation copies; text searches and data mining; and serving the needs of the blind.

Relationship to Section 108.  This section of the U.S. Copyright Act allows libraries to make copies for preservation and research, within limits.  The statute includes an explicit statement preserving the application of fair use: “Nothing in this section . . . in any way affects the right of fair use as provided by section 107.”  The copyright owners argued nonetheless that because one specific statute applies to libraries, the general statute on fair use cannot apply.  We have been hearing that argument for decades.  It never had any validity, and at long last a court has ruled on it.  Libraries may apply Section 108 and Section 107 on fair use.

Fair Use and Persons with Disabilities.  The opinion provides a strong opinion about fair use as applied to serving persons with disabilities, especially when an educational institution is mandated to serve needs under the Americans With Disabilities Act.  The court goes further and resolves a long-time quandary that arose under Section 121 of the Copyright Act.  That statute permits an “authorized entity” to make formats of certain works available to persons who are visually impaired.  An “authorized entity” is one that has a “primary mission” to serve those needs.  Libraries and universities have many functions, so is that service a “primary mission”?  The court said yes.

Principles of Fair Use.  In ruling that the activities in question were within fair use, the court rightly based its decision on the facts as presented and on a balancing of the four factors in Section 107.  Here a few highlights about the factors:

Purpose and Character of the Use:

• The ability to search for terms and to store a digital copy for preservation serves scholarship and research, and those purposes lean in favor of fair use.
• These purposes are also noncommercial when carried out by HathiTrust and the universities.
• The defendants asserted that the preservation copy is “transformative,” but the court found that the argument that “preservation on its own is transformative is not strong.”
• However, maintaining text files for searching is a transformative use, “because the copies serve an entirely different purpose than the original works.”  The files were for search only, and no copyrighted content was accessible.  Specialized formats to serve print-disabled persons is also transformative.

Nature of the Work:

• Although the books included fiction, poetry, and drama, in addition to nonfiction, the court found this factor to be “not dispositive” in the context of the transformative uses for searches and serving print-disabled persons.

Amount of the Work Used:

• Maintaining copies of entire works was justified for the purposes of searching and serving print-disabled persons.

Effect on the Market for the Works:

• For noncommercial uses, the plaintiff must show “by a preponderance of the evidence that some meaningful likelihood of future harm exists.”
• The court rejected the argument of lost sales, finding that sales of books would have not served text searches or access for persons who are print disabled.
• The court found that the copies in HathiTrust were not a security risk, noting the evidence presented about the security measures in place.
• The court also found assertions of future licensing revenue to be “conjecture” without evidence of some actual harm.
• In broad terms, the court also ruled that copyright owners “cannot preempt a transformative market” and uses that are in a “transformative market” do not cause a loss of license revnue.
• The projected high cost of any possible license market would also be cost prohibitive for an initiative such as HathiTrust, and it may not be possible at all given the numerous works and the need to locate copyright owners.
• Regarding the needs of the print-disabled, the evidence showed that they are a “tiny minority” and a market to allow them access to millions of books “is consequently almost impossible to fathom.”

This case offers much more about fair use and other legal issues.  The ruling came down only hours ago, and this is my first look.  Nevertheless, summary of key points above offer a useful insight into the meaning of fair use for HathiTrust and many other pursuits.  More analysis to come, and so much more to consider about future appeals, the relationship to the litigation over Google Books, the future of copyright exceptions for libraries and the visually impaired, and the possibilities of fair use for mass digitization.

News about the ruling:

The Michigan Daily.

Inside Higher Education.

Publishers Weekly.

Some early blogging:

Nancy Sims at the University of Minnesota.

James Grimmelmann and of New York Law School.

Michael Madison of the University of Pittsburgh.

Mathew Sag of Loyola University, Chicago.

Posted: 101112
Updated Links: 101212
Updated re Appeal 110812

When making use of this page under the terms of the CC license, please include this form of attribution: "Used under a Creative Commons BY-ND license from Kenneth D. Crews."  If your needs for the material are outside the scope of the license, please consider fair use or simply asking for permission.

1. Books of short stories and poems.  Not only do the entire books have copyright, but does each individual story or poem have copyright, too?  So copying an entire poem or story out of a compilation book would weigh in favor of the third factor for the book, but against the third factor for the individual poem or story?  Is this how it works with a journal issue as well?

The first question is the easiest.  If you write a book of poems, you presumably own the copyright in the poems and in the compilation of them.  If you collect poems from others and organize them into a book, your only new contribution is the compilation and maybe an introduction and such.  As a general rule, you hold the copyright only in your original contributions.  However, depending on the agreement you strike with the authors of the individual poems, you might hold those copyrights, too.  Copyright can be transferred, and authors of poems and journal articles often find themselves confronted with publication agreements that include a transfer of copyright.  I work hard to discourage many of those deals.

That said, the fair use of one poem from the book or one article from a journal does get dicey when looking at the third factor.  If the pieces were independently created and previously published, then you might have to evaluate each poem separately.  By contrast, if the pieces are assembled as original works and gathered into a new volume—such as the articles in a journal—then you may have some argument that they are only portions of a larger work.  The Texaco ruling from the 1990s went the other way, but one could argue that if the publisher gathers the articles and secures transfers of copyright, a full article is only a portion of the whole.  The jury is still out!

2. Co-authors.  You say that one independent author of a multi-authored works may give permissions, but I’ve seen institutional repository policies that discourage archiving multi-authored documents or require permission from all authors.  Is requiring permission from each author necessary for non-profit, higher ed, libraries to archive a multi-authored work? 

In the case of a joint copyright, one co-owner may enter into nonexclusive licenses.  In other words, if you and I co-author a work and we still hold the copyright, either of us may act alone in granting a nonexclusive license to deposit a copy with our repository.  As a practical matter, the repository may choose to be more cautious.  In order to respect the interests of authors and to prevent disputes that could be messy for everyone, the repository may want to have assent from all.  It is more of a management decision than a legal requirement.

3. Registration.  You say that registration is necessary for the opportunity to win statutory damages and attorney fees, but you also say that without registration you can still win damages.  What ‘actual damages’ could these be?

Actual damages are the harm that you, as the copyright owner, actually incurred.  Here is the text of Section 504(b) of the U.S. Copyright Act, which sets forth the general rule: “The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.  In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.”

4. Are there added liabilities to repositories or digitization initiatives that have a qualified staff member with a Juris Doctor degree?

Well, having a lawyer on staff is not a guarantee that you will be complying with the law.  I do like to think that the lawyer will help with the nuances and help greatly reduce the chance of violations.  But if the question is more like “What other possible copyright violations may arise?” then we have a few to mention.  Material may be added to digital collections with permission, or within fair use or other exception, or if the materials are public domain.  My book addresses these issues in some detail.  However, one more issue is cropping up on a regular basis: The copyright issues surrounding photographs and other materials that are included within a larger work.  For example, an author may give consent to include her article in the repository, but the repository manager is then left to deal with art images, song lyrics, and other third-party works that are inside the article.  Are they within fair use?  If the author received permission, did permission extend to digital media and copies in a repository?  These situations arise often, not only because of the innovative nature of research and publication, but also because internet search engines can find buried content.  Many photographers and others are looking for their works.  As a repository manager—whether lawyer or not—you have to be ready to address these concerns.

5. Are there any common pitfalls that you see librarians falling into? 

Uh-oh.  This is a big one!  I will have to pick this up another day.  In the meantime, let me know specifically what you might be pondering.  Thanks!

I welcome comments and questions,

Kenneth Crews

Posted: 083012

When making use of this page under the terms of the CC license, please include this form of attribution: "Used under a Creative Commons BY-ND license from Kenneth D. Crews."  If your needs for the material are outside the scope of the license, please consider fair use or simply asking for permission.

"Standards & Strategies for
Fair Use Decisions inside Libraries & Universities"
Tuesday, March 27, 2012

Video Now Online!

(Note: Be sure to click "Next" on the YouTube screen to see Part II)

News coverage in Library Journal.

Some Background Reading:

Fair Use in Education and Research

Code of Best Practices in Fair Use for Academic and Research Libraries

A Fresh Look at the Fair Use Checklist

Presenters:

Brandon Butler, Association of Research Libraries
Lisa Rose-Wiles, Seton Hall University
Sheree Carter-Galvan, Yale University
Robert W. Clarida, Reitler Kailas & Rosenblatt
Gretchen Wagner, ARTstor

Host and Moderator:

James G. Neal, Columbia University
Kenneth D. Crews, Columbia University

Posted: 082412

When making use of this page under the terms of the CC license, please include this form of attribution: "Used under a Creative Commons BY-ND license from Kenneth D. Crews."  If your needs for the material are outside the scope of the license, please consider fair use or simply asking for permission.

A Fresh Look at the Fair Use Checklist

By Kenneth D. Crews
This work is licensed under the Creative Commons, Attribution-NonCommercial-ShareAlike 3.0 United States License.

The meaning of fair use in American copyright law has been a challenge since at least 1841, when Justice Joseph Story articulated the concept in a case involving the published papers of former president George Washington.¹  In his quest for some notion of allowable use of copyright-protected works, the celebrated jurist expounded on a set of variables that seemed to make good sense for the case at hand.  Numerous court rulings over the subsequent years relied on the 1841 doctrine and expanded on factors that Justice Story isolated.  Those factors remain the foundation of today’s doctrine of fair use.  We continue to give them meaning when determining how much of a copyright-protected work one may photocopy, download, cut and paste, and convert into a music video mash-up.

The Four Factors of Fair Use

The factors of fair use are today embodied in Section 107 of the US Copyright Act, and they are the foundation of a fair use analysis.²  In 1976, when Congress fully revised the Copyright Act, Congress chose to include fair use in the statutes in order to assure that it would survive and be applicable to the rapidly changing nature of expressive media.  The four factors in the statute are:

•    The purpose of the use.
•    The nature of the work used.
•    The amount or substantiality of the work used.
•    The effect of use on the value of or potential market for the original work.

From a consideration of these four factors come well-reasoned decisions about fair use.  In practical reality, court decisions give these factors meaning in the context of the specific case and weigh the factors in the balance in order to determine the overall “fairness” of the case.  In many ways, that is exactly what individuals need to do in order to determine whether their activities are within fair use—long before a judge could ever have a chance to express his or her opinion.

The Need to Evaluate Fair Use

Although fair uses of copyright-protected works occur thousands or millions of times each day, relatively few questions are actually brought to court.  Most matters are small and not worth the litigation.  Other disputes are resolved or settled without judicial intervention.  Frankly, an abundance of copying and sharing of works is occurring at such a low level that it is generally or pragmatically out of the reach of copyright owners.  Some owners just accept it.

Nevertheless, in many of our pursuits we frequently need to evaluate whether an activity is or is not within the law.  Ample resources about fair use are available for anyone who wants to learn about the factors and their meaning.  Fair use also has become the subject of policy disputes in academia, the halls of Congress, and Geneva where many international treaties are negotiated.  On a daily basis, most fair use decisions occur at home, and in the office, and in our educational institutions, and in our libraries.  Many of those activities demand a real decision, rather than allowing it to slide unseen.

The “Checklist For Fair Use”

The “Checklist for Fair Use” is a tool intended to help individuals and institutions make a reasoned decision about fair use.³  On the surface, the checklist is a breakout of variables and facts relevant to the four factors.  It is an attempt to capture some of the circumstances and conditions that courts have identified as relevant or even important to the evaluation of each factor.  The checklist is not the only resource available for understanding and applying fair use, but a look at its origin and uses will tell much about when and how one should properly use the checklist.

The original checklist for fair use was developed in 1997 while I was director of the Copyright Management Center on the IUPUI campus of Indiana University.⁴  It was the first copyright office of its kind based at any university, and one of our principal objectives was to help the local and national academic community better understand the law and its importance to teaching, research, and other university pursuits.  Fair use is obviously a critical part of that mix.

We built a website that offered a range of materials explaining fair use and the factors, summarizing cases, and offering scenarios for how one might apply the law.  We also had a vision of developing a checklist related to fair use.  I directed the office and worked closely with my colleague Dwayne K. Buttler (now at the University of Louisville) to craft this checklist.  Fair use is based on the four factors, and an increasing number of court rulings were articulating on the meaning of those factors and singling out relevant facts and circumstances.

Our first goal in giving the checklist shape was to review the court decisions and other relevant and influential materials to isolate the facts that are appropriate for consideration with reference to each of the four factors.  An obvious example is that the statute itself says that the first factor is the purpose of the use, and the statute further specifies that the nonprofit educational purpose is part of the consideration.  That was a clear and simple fact that would arise in a given context and be relevant for consideration and weighing in the balance of the first factor.  Also straight from the statute are the references to research, scholarship, criticism, comment, and news reporting. 

Some variables have been developed by courts.  For many decisions, a transformative use is pivotal in the evaluation of the purpose factor.  Similarly, copyright law has little to do with giving credit to the author, yet courts have recognized that when a user does credit the author, it indicates the good faith of the user’s intent, and good faith tends to weigh in favor of fair use.  Regarding the second factor, or the nature of the work, a series of cases have allowed less fair use if the work is unpublished.  Some courts have allowed less fair use for highly creative works such as art or music.  Conversely, if the work is published or nonfiction, then courts tend to be more generous with fair use.  The list of variables identified in the court cases can be lengthy.  Yet, certain variables arise frequently; certain variables are particularly influential; and certain variables are especially germane to uses in the higher education context we were seeking to serve.

The result of a review of the law and compilation of variables is simply what the document says—a checklist.  It is an organized list of elements to consider and that reflects how those variables have in fact appeared in court rulings, in the statute itself, and in other influential works (such as congressional reports).  The checklist tool is not mechanical and it is not a mysterious decision-making device.  It is first and foremost a tool intended to guide users through relevant variables and remind users that in a full and robust evaluation of fair use there might be additional points to consider before making a decision.

The Efficacy of Checklists

Checklists in general have gained significant attention recently.  A new study advocates the important role of checklists for use by physicians.  In the extreme, a tool that reminds a doctor to evaluate certain variables might be a lifesaving step.  Checklists have been a mainstay for airline pilots as they assess each step before locking up the passenger jet and rolling down the runway.⁵

Checklists have found their way into other legal realms beyond copyright.  Jennifer Murphy Romig of Emory University School of Law has written a review of The Checklist Manifesto, evaluating the book’s lessons for the law.  She concludes, “Whether applied to individuals or teams, and whether applied for a competitive advantage within one organization or at the level of policy across an entire profession, checklists appear to be enormously promising.  The Checklist Manifesto is a call for all professionals to take a closer look at their processes and outcomes and their strengths and weaknesses, and to open themselves up to the possibility that rigorously applying checklists could make a real difference in improving outcomes.”  She further adds that in the legal context, “the consistent use of well-constructed checklists can help lawyers improve outcomes on behalf of clients. . . .”⁶

Checklists have become a recommended tool in the publishing world.  At the 2012 Digital Book World Conference and Expo, two executives in the world of book publishing led a program titled, “The Checklist: How a Simple System Can Radically Improve Your Process and Your Products.”  According to the program description: “A well-made checklist is neither a to-do list nor a process description: It’s a tool for preventing critical errors at critical steps in the workflow; an aid to cooperative work among partners and colleagues; and a way of highlighting mission-critical items within the mass of details.”⁷

The Checklist Function: Neither Formula nor Calculator

A checklist may have different functions in different settings, but a checklist is clearly not a formula or a calculator.  It is instead a tool for helping decision makers consider and evaluate relevant steps and variables.  In that regard, a checklist is especially compatible with fair use.  Fair use is not mechanical.  Fair use has no equations or defined answers.  Fair use is about an evaluation of the variables as applied to the factors and a weighing of the persuasive strength of those factors to reach a conclusion about the appropriate scope of fair use.

In order to arrive at conclusions that are well informed and well reasoned, the checklist helps ensure the user will in fact consider relevant elements of the fair use determination.  In the years since developing the checklist for fair use, it has been widely adopted at colleges, universities, schools, companies, and other organizations throughout the country.  Some users have employed the version exactly as originally produced in 1997.  Others have modified it to meet local needs.  In the end the checklist should assist users making a thoughtful evaluation of the four factors. 

The checklist alone of course does not tell the whole story.  Not all of the variables will be relevant in any given case.  Moreover, some variables will be more persuasive or carry more convincing heft in some situations and as a result one factor might be more influential than another.  Courts do exactly the same thing.  One should therefore use the checklist in conjunction with other general reading about the meaning of the factors and how courts evaluate and apply them.

Although I have been immersed in evaluating fair use for many years, I find myself occasionally reaching for the checklist for my own needs.  In one recent project, I was using a reproduction of an artistic image.  I was working with a student on a project and saw the checklist as an effective way for me to document my own exercise of fair use, and a meaningful way to help the student to learn about and apply about fair use.  We reviewed our circumstances and marked the relevant boxes of the checklist.  We evaluated overall the persuasive strength of the different facts and factors.  We felt sufficiently confident that the use of the image was within fair use.

We then pondered one more question: What else could we reasonably do to be even more confident that our use was indeed fair?  The checklist helped us answer that question.  By looking at the boxes that were not checked, an unmarked box about credit to the source of the image stood out.  We had shortcut the credit and could do better.  Used in this manner, the checklist helped us reach a reasoned conclusion about fair use, and it helped us review and strengthen our case for fair use—an ideal deployment of the fair use checklist.

Kenneth D. Crews directs the Copyright Advisory Office of Columbia University Libraries and he teaches in the Columbia Law School, New York City.

Endnotes:

1. Folsom v Marsh, 9 F.Cas. 342 (1841).
2. U.S. Copyright Act, 17 U.S.C. § 107 (2012).
3. The checklist and related materials are available from the website of the Copyright Advisory Office of Columbia University: http://copyright.columbia.edu.
4. Kenneth D. Crews, “The Copyright Management Center at IUPUI: Brief History, Dynamic Changes, and Future Demands,” Indiana Libraries: Journal of the Indiana Library Federation & the Indiana State Library 19 (1 November 2000): 13-15.
5. Atul Gawande, The Checklist Manifesto: How to Get Things Right (New York: Metropolitan Books, 2009).
6. Jennifer Murphy Romig, “The Legal Writer’s Checklist Manifesto,” Legal Communication & Rhetoric: JALWD, 8 (Fall 2011): 93-107.  Available at: www.alwd.org/LC&R/CurrentIssues/2011/pdfs/romig.pdf.
7. The conference program and description are available at: www.eiseverywhere.com/ehome/24240/36095/?&.

Posted: 032312

When making use of this page under the terms of the CC license, please include this form of attribution: "Used under a Creative Commons BY-ND license from Kenneth D. Crews."  If your needs for the material are outside the scope of the license, please consider fair use or simply asking for permission.

I have to admit to some satisfaction when I received an email earlier this year from a law student. To be sure, she was a student at a law school where I have no particular connection. It was an email out of the blue. “I just wanted to send you a quick thank you,” she began, explaining that she was a third-year law student. She was courteous about her copyright professor, but we can safely say that she was not relating well to the professor’s style of teaching, and she was not getting a clear understanding of the structure and function of copyright. She continued:

“Anyway, I downloaded all of your lectures from iTunes U and listened to them intently from my iPhone—some two times. Your lectures explained the background I needed so that the cases I was reading . . . finally made sense. You are a skilled teacher and I really appreciate that you made these lectures available to the public. My copyright exam was yesterday and your lectures made all the difference in helping me succeed. I really, really appreciate it!”

She felt good after the final exam in December. The following February she had her grade, and we can say publicly that she was very, very happy. Today she has a nice position in an established law firm. At this point I feel a bit like an infomercial: "This is not an actor. Actual results may vary." That said, I love teaching. I am especially rewarded when I discover that I was teaching when I did not even know it. I hope my delight in teaching comes through in my classroom, in my writing, and in my conference talks. I am happy to make a series of 11 podcasts available to all. I welcome your comments.

Many thanks,

Kenneth Crews

December 8, 2011

I continue to thank Neil Wehneman for his graceful encouragement and his skill in producing the series.
 

When making use of this page under the terms of the CC license, please include this form of attribution: "Used under a Creative Commons BY-ND license from Kenneth D. Crews."  If your needs for the material are outside the scope of the license, please consider fair use or simply asking for permission.

Earlier this month, The Author’s Guild and several individually named authors filed a copyright infringement lawsuit against HathiTrust and five major universities.  The scope and complications of the case make it especially unpredictable, and much has been written about the legal, constitutional, and procedural challenges that lie ahead.  I see the case in another way.  It may be instead a harsh prelude to reining in the corpus of Google Books digital files.

At the core of the case is the allegation that Hathi’s actions (“Hathi” here is shorthand for all the defendants) to receive, store, and provide limited uses of digital files of scanned books are a violation of the copyrights in those books.  If that were the entire case, we could explore the possible infringing activity and debate the application of fair use or Section 108 of the U.S. Copyright Act.  The case is hardly that simple.  It is complicated by the separate litigation brought by authors and publishers against Google Books—and the quest for a possible injunction that could effectively shut down HathiTrust.  Other blogs have underscored serious problems such as sovereign immunity and standing that weaken the authors’ case.

Passing judgment with only the complaint on file is folly, but here are a few possible directions this case may take:

The Fade Away.  Not all cases run their full course.  Some gradually disappear into a litany of legal motions, changed policies and attitudes, or distractions by other developments.  Too much is at stake here to make this option likely.  Somewhat more likely is outright dismissal or summary judgment.  We can expect to see the defendants file motions on various grounds.  The court would then hold hearings through the coming year or more just to determine if any part of the action will go forward.  Even these preludes to trial can be protracted and expensive.

The Bleak House.  The case could proceed on its own terms, leading to years of litigation at enormous costs.  A basic rule: Don’t start any litigation if you are not ready to finish.  I assume The Author’s Guild is ready to pay substantial sums to lawyers to prosecute the case.  The fees could be millions of dollars.  If Hathi is determined to test the law and press this case to conclusion, it has to get ready to defend on similar monetary terms.  A supportive law firm may offer a lower price, or a foundation may contribute its services, but the commitment of time and money is always considerable.  The outcome is utterly unpredictable.  Right now, every party might secretly wish this option away.

The Snowball.  The legal rule of joinder allows for cases on related issues to be consolidated, suggesting the possibility that the case against Hathi could be consolidated with the ongoing litigation by authors and publishers against Google Books.  The signals so far suggest that is not going to happen.  The cases may not even qualify.  Moreover, Judge Chin is hearing the Google Books case, and he declined to have the HathiTrust case assigned to him.  At least in the courts, this case will likely remain separate from Google Books.

The New Deal.  If the authors, publishers, and Google are successful in the coming months in reaching a revised settlement of their litigation, HathiTrust could easy be drawn into the fray.  Here’s how.  The previous proposed settlement would have allowed the digital scans of books produced by Google to be used by the libraries and maintained at shared repositories, such as HathiTrust.  However, the libraries and repositories may keep and use the digital books only subject to formidable restrictions.  The Author Guild’s concerns about the Orphan Works Project will probably motivate the Guild to argue for even yet tighter restrictions in the next round of negotiations.

This New Deal option could leave Hathi with difficult choices.  For example, the parties to the Google Books case (i.e., not HathiTrust) may do all the negotiations for a revised settlement, including any new restrictions for uses of digital files.  The parties would then turn to Hathi with this offer: Accept the new terms, and the authors will dismiss the lawsuit.  Hathi would have limited choices: Agree to the new deal; convince the parties to revise their settlement; or get ready to continue the litigation.  This is a loaded bunch of issues.  Leaving Hathi out of the room while negotiating about it is a poor business strategy, yet pulling Hathi into a roster of agreed conditions and restrictions seems not likely.  Under this scenario, the new terms would of course apply only to book scans received from Google, but that is a vast swath of Hathi content.

I am not an insider or a fortune teller.  But if HathiTrust is going to continue its services and have the flexibility to meet changing future needs, Hathi will have to make a strong case for the importance, the lawfulness, the reliability, and the security of its services.  HathiTrust is enormously important, but I suspect the outcome of the lawsuit will not depend on either the social significance of libraries or the procedural deficiencies of the complaint.  This may instead be a case about hard-core negotiations of practical rules and procedures.  Hathi may have to assert its position before a judge, but more likely in tough and pragmatic settlement talks.  Otherwise, negotiations taking place in a separate locked room could leave Hathi with few options.

These are my opinions, and I welcome yours.  You may have noticed that this essay includes little substantive about orphans.  The HathiTrust case is not specifically about the law of orphans, but will shape it.  That is another conversation.

Kenneth Crews
October 3, 2011

A previous version of this posting stated that Michigan’s Orphan Works Project was suspended.  It has not been suspended, but a colleague at Michigan referred me to this statement.

These links offer some background:

• HathiTrust and its services.

• Google Books and the contribution of scans to HathiTrust.

• HathiTrust proposal to provide access to orphan works.

The allegations of infringement are based on a series of actions by the university libraries and HathiTrust, much of it as an outgrowth of the Google Books project.  The libraries have since 2004 allowed Google to digitize many of their books, and in return the libraries have received a copy of the electronic files.  The libraries have contributed many of the Google digital files to the collection of HathiTrust.  Pooling the digital books in one location has had several benefits, including efficiencies of scale for digital storage and an interface for searching the full collection simultaneously.  The original scanning, the duplicate files, the mirror storage of HathiTrust all involve reproductions of the books, and that copying is the leading grounds for the claim of infringement.

As in any case, one should refrain from judgment based on only the complaint.  But this case promises to stir interesting and important issues about reproduction and copies, and about fair use and Section 108 of the Copyright Act—the statute that allows libraries to make copies for preservation and other purposes.  It is also about orphan works.  American copyright law has no provision to safeguard the users of orphan works, other than an interpretation of fair use.  Under the auspices of fair use, HathiTrust is currently preparing to launch an initiative to permit libraries and their users to access some digital files of books in the library collections that are deemed to be orphans.

If the litigation progresses, fair use will figure prominently.  In the meantime, these two issues of complication are dominant:

Orphan Works.  The complaint is about much more than just the orphan work initiative at HathiTrust, but orphan works receive ample attention.  Orphans seem to be emphasized in the complaint as an example of the expanded use of the digital files that HathiTrust is clearly willing to pursue.  For the libraries and users, that may be a good thing.  For the rightsholders in this complaint, it is far overreaching.  Moreover, the complaint cites the Google Books case and the failed efforts by Congress to enact orphan works law to argue that orphans need a legislative solution—not a private innovation.

Google Books Settlement.  This case may mean nothing or everything.  We will know soon.  The parties to the Google Books case are due in court this week, on September 15.  The Authors Guild is bringing the case against HathiTrust, and Guild is also a party to the Google Books case.  The HathiTrust case probably signals that the Google parties have not reached a new settlement, and libraries and universities will be pulled into the renewed litigation.  It could by contrast signal that the parties have reached a settlement and want steer all e-book activity away from HathiTrust into a licensing system that will be part of the settlement.  Stay tuned.

This case raises many more issues, but these are my initial thoughts.  The opinions here are not necessarily the views of Columbia University.  I welcome your thoughts.

Kenneth Crews
September 12, 2011

Want to read more?  Here is a sampling of other reports and summaries about the lawsuit:

• Author Guild press release.

• The Complaint.

• James Grimmelmann and The Laboratorium.

• ars technica article.

• Publishers Weekly article.

• Associated Press article.

When making use of this page under the terms of the CC license, please include this form of attribution: "Used under a Creative Commons BY-ND license from Kenneth D. Crews."  If your needs for the material are outside the scope of the license, please consider fair use or simply asking for permission.