The Congressional Review Act & The Internet: How The FCC Might Get Burned By The Very Same Act It Used To Unhinge Privacy Rules For Broadband


The net neutrality vote at the FCC played out as many predicted. And I am not here to talk Title II, common carriers, and the depressing fact that judicial review of administrative actions are often limited.

Today, I wanted to talk about another interesting Act, the Congressional Review Act, that, if used properly, could effectively nullify the FCC’s anti-net neutrality vote. And, coincidentally, it is the very same Act that helped to kill the consumer-friendly privacy rules for Web users passed under the former FCC chairman.

First though, lets’ talk about those privacy rules, which were tragically nullified even before they were to take effect….

As we well know, Broadband companies like Verizon and Comcast are in a non-stop race to extract and analyze web customer information, including our app usage, browsing habits, and location information. Now, no matter what side of the privacy spectrum you fall on, we are all aware that companies like Google and Facebook already make use of much this data. And, certainly, privacy actions have been brought against those companies in various forms through the years.

The former FCC chairman, Tom Wheeler, helped pass a new set of internet privacy rules in October 2016 which was intended to require broadband Internet Service Providers (ISPs) to protect the privacy of their customers. The rule basically stated that home Internet and mobile broadband providers must get consumers’ opt-in consent before selling or sharing and web history, usage, and other private information with advertisers and other companies. The rules helped to ensure broadband customers have “meaningful choice, greater transparency and strong security protections for their personal information collected by ISPs.”

And privacy and consumer protection advocates cheered! The new rules were scheduled to go into effect this December.

And then we had a shift in the administration.

And then Ajit Pai, a former Verizon lawyer, with his big mug, took the FCC Chairman position.


And then a little-known, little used law suddenly reared its head, and these new internet privacy rules were repealed even before they took effect.

And, on top of that, the FCC is prohibited from proposing similar privacy regulations ever again. Ever. Again.

How? What rule could be so powerful to upend a legal administrative process? And employ a permanent preemptive strike against any similar future law?


Enter the Congressional Review Act (“CRA”).

The CRA requires federal agencies, like the FCC, to report to Congress whenever enacting a rule with a $100 million impact on the economy. Congress then has 60 legislative days to pass a joint resolution “disapproving” the rule. And, for the resolution to take effect, it must be signed by the President (or override a potential veto)

CRAThe CRA, passed in 1996, helped restore some of the Congressional power lost in a case titled INS v. Chadha, which effectively ended a sort-of “Congressional veto,” that formerly permitted both houses of Congress to invalidate federal agency actions.

Now, certainly the President can veto any CRA joint resolution. And that typically has been the “check and balance” of the CRA. For example, while there have been tens of thousands of agency rules since the CRA was passed in 1996, in all that time it had only been used once. In 2000, President Bush used the CRA to take down the OSHA’s final rule on workplace ergonomics promulgated in the waning days of the Clinton administration. (Why ergonomics? I have no idea, but it’s a great research question!)

So, was the current CRA use, nullifying the internet privacy rules, only the second time the CRA has ever been used? Well, no, not quite.

During President Trump’s first four months in office, he signed a record breaking 14 congressional resolutions, disapproving rules created by federal agencies during the Obama administration. The internet privacy rules were only one of them. Others that were nullified include regulations banning Social Security recipients with a mental impairment from buying a firearm, restricting the dumping of mining waste in streams and rivers, and requiring energy companies to disclose how much they’re paying foreign governments.

trump-drawsFor example, Trump nullified the “Fair Pay & Safe Workplaces” rule, which barred companies from receiving federal contracts if they had a history of violating wage, labor or workplace safety laws. Starting to see a pattern here?

[Note: These CRA Resolutions got fast tracked to his desk so often, this is why we have tons of pics, memes, and other media of his signature process]

You may be asking “Why the significant jump in using the CRA? It hadn’t been used in over a decade. How was it so successful in the present political environment?”

Well, we have what I am now calling the CRA triple threat: when the House, the Senate, and the Executive office are all controlled by the same political party. When there is no real “check and balance” the CRA is that much easier to utilize, and becomes so much more powerful. Especially if you have an administration that wants to unravel the previous administration’s entire agenda in any way, shape, law, or form!

Amazingly, these CRA resolutions also have their own little FastTrack: they bypass Congressional committee review and they are not subject to a filibuster. All you need is a simple majority vote and Zoom! Down goes any “disapproved” regulations.

In April, President Trump signed the CRA resolution that nullified the FCC’s new privacy rule. And, according the CRA, this means that, in future, the FCC may not reissue any rule in “substantially the same form,” thereby preventing other administrations (“Four Less Years!”) from recreating a similar regulation.

But now you might be thinking, “Well thanks for depressing me about law and unchecked legislative and executive power, but didn’t you promise some sort of epic burn against the FCC’s latest net neutrality vote?” Why yes, I did.

Again, the CRA empowers Congress, as stated earlier, to pass a joint resolution “disapproving” the rule within 60 days of an agency action. And here, as of Dec. 14th 2017, the FCC repealed landmark Net Neutrality regulations overseeing broadband companies.

The FCC released their Final Rule documentation last week. The CRA clock started ticking.

Forward thinking Sen. Ed Markey must have thought “If the Trump Administration has used the CRA a record breaking 14 times, why can’t we use it too?” Markey introduced a resolution under the Congressional Review Act, which would allow Congress to erase the FCC’s new anti-Net Neutrality action within 60 congressional days.

A simple majority is needed to pass a CRA resolution in both the House and Senate. This, again, is because the CRA is fast tracked through the system.

The linchpin, of course, is that once the CRA Resolution is passed (see below for those chances), either 1) the President needs to sign it or 2) a two-thirds majority in both chambers would be needed to override a veto.

While this could seem like a long-shot, there is hope in the numbers themselves.

A December University of Maryland poll that shows 75 percent of Republicans (along with 89 percent of Democrats and 86 percent of independents) support net neutrality! It looks like this is one of the few programs in the U.S. that everyone can get behind – party affiliations aside.

Unless of course, you are Comcast, Charter, AT&T, Verizon, or FCC Chairman Ajit Pai.

As of yesterday, Markey’s resolution of disapproval had 40 co-sponsors guaranteeing that a procedural vote will happen on the floor of the Senate.

But the clock is ticking….

Here’s the next chain of events:

  • Once it gets to the floor, it would go through a motion to proceed, which requires a simple majority of 51 votes. (For this to pass 100% of the Democrats and two Republicans would have to vote to support the motion to proceed)
  • Next, after the motion to proceed, the resolution would again need 51 votes to pass in a final Senate vote.
  • Next, a similar effort must happen on the House of Representatives side (similar process, different numbers needed)
  • Lastly, the measure would head to the President… and he could veto
  • If vetoed, a two-thirds majority in both chambers would be needed to override the veto

Yes, its a long string of events – but with the nearly nationwide support, it is possible!

And wouldn’t it be the greatest justice if the very law which eviscerated our consumer privacy protections was used to re-instate the Net Neutrality rules? Yes. Yes it would.



Keep up on CRA and Net Neutrality developments here at

End note: For those of you that think the CRA is clearly too dangerous and too powerful for a single law, no matter what party uses it, you are not alone. In May 2017, Sen. Cory Booker and Tom Udall introduced S. 1140, a bill to repeal the CRA. Stay tuned!

3rd Annual Fair Use Week


I am delighted to announce the 3rd Annual Fair Use Week!  This is an opportunity for the community to celebrate the fair use doctrine, which “facilitate[s] balance in copyright law, promoting further progress and accommodating freedom of speech and expression.”

When I launched the “beta” Fair Use Week in 2014, it was a testing ground for what I hoped would be a much larger engagement with one of the most critical of all copyright laws: fair use. I wanted to create a week that would promote, challenge, engage, and educate. And I am happy to say that this 3rd Annual Fair Use Week has more engagement than ever! Thanks to the many libraries, universities, colleges, organizations, individuals, and other institutions that are doing their part to raise the level of dialog during Fair Use Week!

Fair use is important to the work of teachers, artists, playwrights, journalists, librarians, critics, students, scholars and our entire economy.  Fair use supports unprecedented creative outputs. And, as you will see in articles coming this week, fair use is spreading around the world to offer the same benefits given to the U.S. since 1841.

I invite you to explore the upcoming Fair Use Week festivities.

I have some expert fair use colleagues and guests contributing to the Harvard Library Office for Scholarly Communications copyright blog.

I will be highlighting great stories, art, videos, and other fair use related content on the Fair Use Week Tumblr.

I will be running the official Fair Use Week Twitter feed, which will keep you up to date on Fair Use Week conversations. [In fact, you can follow @FairUseWeek for a chance to win an official Fair Use Week tote, featuring the logo and one side, and a surprise fair use image on the other!]

I, myself, will be quite busy this week:

  • On Tuesday, Feb. 23rd I will be on a panel (and moderating) a joint MIT and Harvard Library discussion, “Fair Use in Scholarly Journal and Book Publishing” at MIT’s Killian Hall (14W-111) from 12:00-1:00pm (watch the live webcast!). Panelists include: Nick Lindsay, Journals Director, MIT Press and Bill Smith, Director of Intellectual Property Licensing, MIT Press.
  • On Friday,  Feb. 26th, I will be giving the opening Keynote address at the Institute on Copyright in Higher Education. My presentation, “Fair Use: Past, Present, and Future of a Critical Legal Right,” will start at 9:20am and will be part of FSU’s live webcast.

Lastly, I would like to thank my partners in Fair Use Week since the 2nd year, Krista Cox and the Association of Research Libraries (ARL).  ARL and Krista (she is ARL’s stellar Director of Public Policy Initiatives) have been nothing but supportive of the idea and truly helped Fair Use Week develop from localized programming to worldwide participation. Many thanks!

ARL is kind enough to host a list of other local and national events on their Fair Use Week website.


The Copyright Office and the Orphan Works Report: Top Three Problems

I have been quiet on this blog for a while now. Someone recently told me at ALA Annual (in San Francisco) that I should be writing down and saving some of my “scorch the earth” type copyright analysis (read: rant?). I decided yes, you are right. And yes, I should share. So here goes – this is my first, of many, things I can’t hold back about:

The Copyright Office & Orphan Works (Part I)


The Copyright Office released its long awaited Report on Orphan Works. And I have concluded it may be time for a change in regime in that particular office. This new report is basically a magnificent time-travelling dodge, who gives us, yet again, the same tired, trite, useless, and failed legislation that we had at every other phase of orphan works discussions since 2005.

I wanted a crude phrase to summarize this travesty of a report, but I will keep it civil (at least in these opening paragraphs):

Dear Copyright Office: it’s 2015 and your failure to recognize the shifts in fair use, best practices, and the fact that the word rightsholders has absolutely no meaning in the orphan works context, makes you look incredibly senseless or susceptible (or part of) the gang of rightsholders organizations that convinced you they have some voice in this argument. [Orphan works do not have rightsholders by very definition. If there are rights-holders then it is not an orphan work. More later on this mind-bending reality.]

Let’s review the various mockeries in this “new” report:


#1 – Dear God, It’s the Poison Pill Again: Notice of Use Requirement


Much of the tired report is based on the 2008 Shawn Bentley Orphan Works Act, which passed the Senate, but failed in the House of Representatives. The version of the Shawn Bentley Act passed by the Senate in 2008 did not contain this “Notice of Use” provision. Then, Congressman Howard Berman, chairman of the House IP Subcommittee, added this “Notice of Use” provision as a “poison pill” a.k.a. “with the intent to destroy the bill” – and it worked. It was, with said poison pill, strongly opposed by the libraries and other supporters, and died in the House.

[Side Note: Berman is, in my opinion, a terrible “Hollywood Democrat,” even occasionally called “the representative from Hollywood.” In a September 2008 hearing of the House IP Subcommittee, Berman criticized the National Institutes of Health’s policy requiring NIH-sponsored research to be submitted to a database open to the public by saying that “the N in NIH shouldn’t stand for Napster.” You’re a class act, Berman. The success of the NIH’s open access repository helped lead the way for the current Open Access mandate from the government for more government research. Citizens have rights to the research they paid for in taxes, a**hat.]

Yet here we are in 2015 and see the same, tired, misguided, and frankly, uninspiring report – including, this time, the same poison “Notice of Use” provision from the start. This directs potential Orphan Works users to submit detailed information to the Copyright Office with the details of the proposed use and the nature of the search. The notice has SEVEN (!) requirements:

1) type of work used; 2) description of the work; 3) summary of the qualifying search conducted; 4) any other identifying indicia available to the user; 5) source of the work (such as the library or website where the work was located or publication where the work originally appeared); 6) certification that the user performed a qualifying search; and 7) name of the user and description of how the work will be used.

To say that this is burdensome is clearly an understatement. Again, we see that the Copyright Office, filled to the brim with what appears to be an anti-library cadre, has no idea about the time and resources necessary to outline each potential orphan work use. Additionally, since this was already used as a poison pill – this draft is as useless as a screen door on a submarine.

The money, time, and documentation necessary to notify the world of an orphan work use is unfeasible, particularly if a user was contemplating large or masss digitization, in which the goal is not a single particular use, but freeing the culture, scholarship, and information to the world!

The Copyright Office itself acknowledges that “filing a Notice of Use for each use of an orphan work may place a significant burden on users […].” For real? Then why include the poison pill provision at all? Is the Copyright Office aware that libraries are not exactly rolling in cash and staff surpluses? No. They know. They are biased against us. I am fairly sure of it.

And, on top of all of that – the real secret is that the Copyright Office does not have the staff, time, technology, or resources to even support the effort that they have proposed in this Notice of Use requirement. So this thing is failed right from the start. Well done.

Insert Slow Clap

#2 Time Traveling Suckage, Part II: Good Faith Diligent Search


Again, the Orphan Works Frankenstein’s Monster of 2008 (er, the Shawn Bentley Orphan Works Act – “Fire, Bad”!) included a requirement for limited remedies when a user of an orphan work has conducted a diligent, good faith search for a rights holder and reasonable compensation for rights holders with a special provision for noncommercial actors (including libraries) engaged in noncommercial use of orphan works. Sounds great, right? NO.

The definition of a good faith diligent search has many required elements that the world already found troubling back in 2008! The search requirements include, at a minimum, a search of Copyright Office records on the Internet, sources containing authorship and ownership information, technology tools (what? “Technology tools?” What is that?), databases, and even Copyright Office records. Yes, that’s right, the very same Copyright Office records that are not available on the Internet.

A good faith diligent search “shall include any actions that are reasonable and appropriate under the facts relevant to the search, including actions based on facts known at the start of the search and facts uncovered during the search, and including a review, as appropriate, of Copyright Office records not available to the public through the Internet that are reasonably likely to be useful in identifying and locating the copyright owner.”

Again, we are fighting the same fight here from years ago. I feel like Doc Brown trying to warn Marty McFly – it doesn’t work this way folks. The world hated this overly burdensome definition then and we reject it now as well. What they have outlined is extremely time consuming and resource intensive searches that half the libraries of the world can’t perform, pay for, or, in the case of the mysterious Copyright Office records not available to the public – can’t even find! Argh! (You understand my level of frustration now, Marty McFly?)

Orphan Works Going Back to the Future


I must quote from my friend and colleague Emily Feltran at the American Association of Law Libraries who said recently:

Institutions working with orphan works will have differing resources that they can employ to undertake searches and, particularly in the area of mass digitization projects, mandatory steps could lead to a cost prohibitive per-work analysis and documentation process. Like fair use, use of orphan works requires flexibility.

Well said Emily. Good faith, diligent searching should be flexible. Librarians are Information Professionals. And we are the best dammed searchers on the planet. Let us determine what’s necessary and go forth. Trust us.

Again, my assertion here is that the Copyright Office has drank the rightsholder Kool-Aid, and does not trust librarians to act in good faith. They are biased and anti-library.


#3 Fair Use. Good. Wait – It’s Bad? It’s a trap!


This part had me both angry and confused. But mostly angry.

While the draft does include a nice “Fair Use Savings Clause”

PRESERVATION OF OTHER RIGHTS, LIMITATIONS, AND DEFENSES— This section does not affect any right or any limitation or defense to copyright infringement, including fair use, under this title. If another provision of this title provides for a statutory license that would permit the use contemplated by the infringer, that provision applies instead of this section.

It’s a trap! (tip of the hat to Admiral Akbar)

Copyright Office’s Fair Use Savings Clause

The Copyright Office’s Report on Orphan Works is actually a backhanded attack on fair use. And, yet again, shows its complete bias against the library community by taking a few shots at any orphan works best practices which emerged from our communities.

Let me take this one by one here:

Fair Use

Yes, the fair use savings clause is good. We can use fair use for some orphan works, and transformative uses have become critical to our fair use inquiry. And compared to legislation, it’s here, now. We don’t have to wait for our (least productive) Congress (since 1942) to try and pass this law. As I stated at the Orphan Works Roundtables held at the Library of Congress last year:

What are the chances that legislation will be passed that satisfies everyone at this table? Zero…..But what we have now is we have best practices….and we have fair use now. It’s not perfect, but it’s good enough. And I think that we avoid this kind of vicious cycle that we’ve been going through over the last seven or eight years with regards to orphan works. I mean, let’s rely on what we have now. Codes of best practices are useful as a tool for education, risk mitigation, indicators of what’s reasonable, and make aspirational goals for a particular profession or job function.

But what does the Report on Orphan Works from the Copyright Office say about fair use? From the Report:

The judiciary has yet to explicitly address how to apply fair use to orphan works. Thus, the informed and scholarly views of some commenters as to the application of fair use in specific orphan works situations do not yet have as their basis any controlling case law. Also, fair use jurisprudence is, because of its flexibility and fact-specific nature, a less concrete foundation for the beneficial use of orphan works than legislation, and is always subject to change . . . The Office does not believe that reliance on judicial trends, which may turn at any point, is a sufficient basis to forgo a permanent legislative solution.

Holy Bulls**t, Batman!

You don’t have to have a perfect on-point orphan works case to use the fair use statute! That’s the whole point – it’s a flexible law which can adapt to various new and undefined uses. This above statement makes the Copyright Office look like a group of first year law students – “But there’s no exact case on point with the exact same fact pattern – Wah!” Listen up you 1L’s – the common law allows you to rely on previous caselaw, even in different fact patterns! Wow! You can do some legal analysis and make significant correlations, and even cite and use the fair use statute! Amazing!

As far as that there’s this idea from the Copyright Office that the record is unclear regarding fair use, I say: balderdash! (Quoting from Kenny Crews “Fair Use Week” blog entry). We’ve had about 30 years of fair-use litigation and a decade or more of transformative fair-use litigation. Since the 2 Live Crew case the law has come down with a clear set of decisions and guidelines – Second Circuit, Ninth Circuit, and others – that says what transformative fair use is and is not. And we have a righteous common law record which is grounded by that Supreme Court decision. This is not a “judicial trend” – it’s a recognized record of common law which can be relied upon to make copyright risk-mitigating decisions. An established legal record of jurisprudence. Don’t get me started on how our common law system gives us certainty, uniformity, and predictability in law! It does. So don’t go around saying fair use is a “judicial trend” – it sounds silly.

Best Practices

Again, the Copyright Office takes a shot at any role for community best practices, especially from libraries and archives. They can’t help but show their complete bias in this regard. Their statements sound exactly like the whining I hear about best practices from every rightsholder organization at every copyright, fair use, libraries, first sale – you name it – panel or roundtable. It’s like they are even mimicking their tone:

Orphan Works best practices [i.e. the Society of American Archivists Orphan Works: Statement of Best Practices and the Statement of Best Practices in Fair Use of Orphan Works for Libraries & Archives] fail to “provide guidance on how a library should go about determining if a work is orphaned in the first place, beyond the lack of commercial exploitation by the owners and the likelihood that the owners could not be located….” And they “often are arrived at absent consultation with authors and other copyright owners, and therefore run the risk of being more of an aspirational document—what a community believes fair use ought to be – than a descriptive one.”

Again: Bulls**t.

Our community – libraries, archives, researchers, scholars, etc. – has two Orphan Works best practices documents which users have been relying on for years. There has been no litigation. No threats of suits. Just guidance, understanding, and uses. We have done what the copyright office wish they have done – created a document that actually helps users with the orphan works problem. The Society of American Archivists Orphan Works: Statement of Best Practices and the Statement of Best Practices in Fair Use of Orphan Works for Libraries & Archives are fine documents attempting to solve the problems we are facing.

[At least we aren’t recommending stale, failure-bound legislation from 2008, with no hope of ever passing through Congress.]

Codes of best practices have become common tools over the last decade to mitigate risk for a host of civil and criminal wrongs, including copyright infringement. The term has not been defined by case, statute, or regulation very well, but has its origins in business management. However, there are some elements of them found in the law. The Uniform Commercial Code, for example, is an attempt to codify industry best practices with regard to commercial interactions.

These codes are usually compiled from actions, thoughts, practices, and values of a particular community’s mission. They are not law, but have the effect of defining what is “reasonable,” so that if litigation does arise, the courts can look at these best practices a form of good faith effort, or to alleviate some of the brunt of liability. These codes of best practice are useful as tool of education, risk mitigation, indicators of what is reasonable, and make great aspirational goals for a particular profession or work function. And, as a result of the rapid movement into digital age, these best practices frequently have to do with new technology. The Society of American Archivists Orphan Works: Statement of Best Practices and the Statement of Best Practices in Fair Use of Orphan Works for Libraries & Archives aren’t just two statements; they are carefully crafted. You have a firm statement, then you have limiting statements underneath, and then you have guidelines and stories about how the community is using them. They are helping.

And that last statement, that the Copyright Office feels these best practices are “often are arrived at absent consultation with authors and other copyright owners.” Hey Copyright Office – the orphan works don’t have any “authors and other copyright owners” – that’s the whole point. They are orphans. Why the heck would we consult with them? They don’t own the rights, and if they did, it wouldn’t be an orphan work!

Let me summarize with a quote from the Roundtable again.. And I said:

And as for the remedies that are offered to folks, you know, the only remedies that a creator has is bringing something to court….[I]f they wanted to bring it to court they would have to register it, right? That’s the prerequisite for a federal district court complaint that you would have to register the work [with the Copyright Office]. So then it’s no longer an orphan work.

**Problem solved!**
Final Thoughts


I have been rough. But we need to get real. Copyright Office: You failed. This Orphan Works Report is a Frankenstein’s Monster from 2008, emerging from a stinking time-traveling machine that is ripe with failure. Thanks, but no thanks. And I can’t even get into the whole collective licensing nightmare you also suggested. That’s for another post.

Also, Copyright Office, please stop whining about being inside the Library of Congress and get to some real work that might make a difference. (See Kevin Smith’s excellent article: Does the Copyright Office Belong in a Library?) And please stop kowtowing to the rightsholder organizations – you represent the people, not the industries. I see your bias, and I am not happy, nor is library community as a whole.

Again, about leaving the Library of Congress to become your own special snowflake (quasi-independent, Congressional super force)?   I say this: You are right where you rightfully belong: working for librarians. Get used to it. I plan on fanning the flames of my colleagues in archives and libraries to get you to comply with your role and mission. You work for the Library of Congress, with, potentially, a new Librarian of Congress. You answer to librarians. And after all – we are on the good side! We are the defenders of the public access, privacy, and the right to the free flow of information. Why not lay down your arms and join our ranks? (Is there a librarian among you in any of the senior positions at all?)

Lastly, stop with this Frankenstein’s Monster 2008 Orphan Work report, stop begrudging libraries, best practices, and fair use, etc. You might want to start by scanning in the “Copyright Office records not available to the public through the Internet that are reasonably likely to be useful in identifying and locating the copyright owner.” Seems like a quick win for everyone there, no?

Launching the 2nd Annual Fair Use Week

I am honored and delighted to celebrate the 2nd Annual Fair Use Week! What started as an idea generated from supporters of ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries, launched as my “beta-test Fair Use Week” here at Harvard last year, has now become a nation-wide event!


Last year, when I launched the beta-Fair Use Week here at Harvard, we were fortunate to collaborate both with people from within Harvard and beyond.  We discovered a real thirst for discussion and knowledge about one of the most important topics – fair use – that drives the teaching, learning, creativity, and scholarship in the United States.  We had folks discussing fair use in the arts, music, archives, libraries, and journalism.  We featured, in blog posts, the struggle for the introduction of fair use to other countries.  We collected, on our Fair Use Stories Tumblr, stories from the world of art, music, film, and academia, which emphasized the importance of fair use in these communities.  And we had experts weigh in on the many interesting decisions around fair use and libraries.

Copyright law affects the work of librarian’s every day.  In fact, I like to say that “Every Day is Fair Use Day” in a modern, 21st century library.  The majority librarians’ work deals with accessing, storing, exhibiting, or providing access to copyrighted material.


We are luckyFairUseWeek arl 15 draft2 in here in Massachusetts – our state was the venue, and some Harvard historians, librarians, and publishers were the first parties to be involved with a seminal fair use case in 1841.  Justice Joseph Story, already a legendary American jurist, heard the case Folsom v. Marsh, outlining what was later to become the four fair use statutory factors. In 1994, in a case titled  Campbell v. Acuff-Rose Music Inc., the  Supreme Court established Story’s decision as the foundation of the modern fair use doctrine.




In keeping with that historical narrative, Harvard Library has been on the forefront of providing a shared understanding through our Copyright First Responders programming, training librarians on concepts in copyright and fair use.  Again, fair use is critical to the activities of libraries, supporting our broadest missions.  An innovative 21st century library should have a robust understanding of fair use and the flexibility it provides to all our communities.

This year, with help from our partners world-wide, and Association of Research Libraries (ARL), we are continuing the conversation we started last year, and exploring fair use’s aspects through panels, blog posts, workshops, fair user’s stories, and a little bit of fun.  Please follow the activities online at, see the stories at and follow Twitter @FairUseWeek.

[P.S. A great thank you to Krista Cox (Association of Research Libraries) for coordinating the 2nd annual bigger and better Fair Use Week.  And to Pia M. Hunter (University of Illinois at Chicago Library), and Brandon Butler (Practitioner-in-Residence at Glushko Samuelson IP Clinic, American University, Washington College of Law) who were the originators with the vision to host a week-long fair use celebration. Again, I hope our 2nd annual celebration matches part of your vision.]

Open Access at Harvard: An Evening with Peter Suber and Kyle Courtney | Harvard Alumni Association

This summer I had the pleasure of co-presenting to a group of Harvard alums, at the invitation of the Harvard Alumni Association.  If you are interested in the “Top 5 Things” I am advocating for including my work with libraries, copyright law, MOOC’s, orphan works, digital first sale, and open access, please listen in – I provide a nice overview of the work we do each day.

The best part is that right after my brief presentation, Peter Suber gives an excellent overview of the Open Access movement, the Open Access policy at Harvard, and about our office (the Office for Scholarly Communication), including DASH (Digital Access to Scholarship at Harvard), the repository of Harvard scholarship available to the world.

The Harvard Alumni Association has posted the talk on SoundCloud.

Library Launches Copyright First Responders Program

Below is the latest from Harvard Library communication on my beta program for copyright and libraries.  I developed the Copyright First Responders program with one thing in mind: Librarians should be the front lines of copyright expertise.  A brief survey I did a few years ago revealed that the Library was the place where the majority of copyright questions were being asked – Circulation, Reference, Tech Services, Special Collections, Preservation, Digitization, Access Services – every department interacted with it in some way.

I believe the decentralized copyright model will work the best.  Why?  Because when answering copyright questions at a library you need the expertise of the subject matter as well.  How does the field publish? What are the norms for access to information? What databases and licenses exist in this field? Who are the routine publishers of the journals, serials, monographs, or e-books in this discipline? Where are the materials located? How are they accessed? Who owns the materials?

Librarians have this necessary expert-level of knowledge.

Building an understanding of “practical copyright” on top of their information expertise is, I believe, the best and most efficient outcome for a “hub-and-spoke” model for a decentralized copyright structure.  So far, the copyright immersion program I am running has been fantastic.  The Copyright First Responders will be deployed at their respective libraries this Fall, and more cohort are planned for the future!

[Linked from]

Library Launches Copyright First Responders Program

Training front-line responders to copyright questions

July 8, 2014—This fall the Harvard Library will deploy the Copyright First Responders (CFRs) — a pilot program being developed as a resource for anyone at Harvard struggling with copyright issues.

The program was founded by Kyle K. Courtney, the copyright advisor at the Office for Scholarly Communication, who observed an increase in his caseload and had rising concerns about copyright’s rapidly changing law and the resulting implications for libraries and their users. In response, he is building a distributed network of individuals across Harvard’s libraries trained to either answer questions themselves or refer them up to experts.

The inaugural cohort of the CFRs – a dozen library staff members from diverse corners of the Library – started training with Kyle this spring under his “Copyright Immersion” program. The CFRs will be open for business in fall 2014, with a series of introductory presentations at each library featuring Kyle and the CFR representative for that particular library. The goal is to aid the library community by addressing copyright issues regularly faced by their colleagues and patrons.

In the weekly CFR meetings, Kyle couches thorny copyright issues in timely questions like, “Who owns a selfie?” Participants apply principles from case law and their assigned readings in their discussion, which usually lead to bigger questions about copyright and its effect on libraries, publishers, researchers and readers.

In a recent session addressing digital first sale, the importance of copyright on daily library operations was clear: “If a library has 1,000 e-books, it doesn’t really own them in the traditional sense of the word, which interferes with collections, which interferes with preservation, which interferes with being a library,” said Courtney.

Once the first CFR cohort is deployed, Kyle plans on launching a second cohort for training in late fall for more libraries, departments, and programs.

Copyright, Licensing, and the Publishers: Four MOOC Syllabus Strategies

In the traditional educational system, the library often serves as the place for course reserves or materials provided to students for their independent use in conjunction with the course. Sometimes these are in print; more recently they are available electronically through content management systems.

When we move a course to an online MOOC format, we lose the ability to have a course reserve, whether print or electronic. MOOC students are not traditional students of a college or university, therefore they do not have access to the multitudes of subscription databases that could provide these readings. Nor would the MOOC students be able to access any of the print reserves at the library. MOOC students can be located anywhere around the world with Internet access. Additionally, the licenses the library has with these databases do not allow the type of distribution necessary to sustain a MOOC. If we started to upload articles, textbooks, or other syllabus materials, we might find ourselves hauled into a court charged with direct, contributory, or vicarious copyright infringement.

To counter these issues, I playfully named these four strategies for dealing directly with all the problems associated with syllabus materials. Each has certain advantages and disadvantages, but I have used each tactic in many MOOC classes.

1. Let their (student) fingers do the walking. First, if the syllabus material (article or otherwise) is available online for free through an open link, then we encourage simply linking to that article. Or one can simply post the citation to the material with the expectation that students will acquire it for themselves (by purchasing it, borrowing it from a library, or finding it online). This method has its drawbacks. Frequently, faculty do not have syllabus materials that are OA and/or linkable.

Secondly, many students (even MOOC students) expect to be able to acquire the readings, textbooks, or articles for free, or with as little burden as possible. One MOOC that was cancelled midstream this year, cited the students’ dissatisfaction with the decision to assign a textbook that was not free. [see “Professor Leaves a MOOC in Mid-Course in Dispute Over Teaching,” Chronicle of Higher Education, Feb. 18, 2013,]

Accordingly, if the material is not available via an open link and may be difficult for students to obtain, we asked the faculty to consider substituting other material that is available, if feasible given the pedagogical aims, or retain a citation to the material but make it supplemental rather than required.

2. If you can’t beat ’em, join ’em. There is definitely something to be said for making collaborative agreements with major publishers of textbooks or journals for MOOC access. This method has the library reach out to the publishers. Perhaps the faculty only need a few chapters of a text? Perhaps a “technologically impaired” version can be released? These methods have been successful in the past.

When edX launched Introduction to Computer Science and Programming (MITx: 6.00x), taught by John Guttag and others, MIT Press agreed to provide free access for students to an online version of the required textbook for the entire duration of the course. This open, online version offered the full-text of the book in a static, read-only format. It did not feature all the bells and whistles of a full e-version of the text (i.e., not downloadable for use offline, not searchable), but it still provided the students with the basic text they would need for the course. To enhance the deal further, MIT Press offered MOOC students a special price for the print and e-book editions at a 30 percent discount.

The interesting part of this method is that both the publishers and the students were very pleased with the outcome. From the publisher’s side, it increased sales. Even though there was a free static book available, sales of the print and e-book to students were quite substantial.

3. Permissions dance (or the permission two-step). Many reading this publication understand that, traditionally, when a journal accepts an article for publication, the publisher typically sends the author a publication agreement to sign and return. This agreement usually requires the author to assign the copyright to the publisher, with the author occasionally retaining limited rights.

It may not be a surprise to hear that many faculty, including the edX faculty, were not clear on how that agreement might impact their use of their authored textbooks and articles for their edX classes. For example: A faculty member wants to use his or her authored articles or book for class. Surprise! The faculty member has no rights to share this article per the publication agreement, and her or she cannot share it with the potential thousands of students that make up a MOOC course. Again, this level of distribution would be tantamount to serious contract breaches or copyright infringement.

However, this gives the library a great opportunity to talk with faculty about publication agreements, OA, and institutional repositories. At Harvard, through our Open Access Policy, faculty authors in participating schools grant the university a nonexclusive, irrevocable right to distribute their scholarly articles for any noncommercial purpose. Scholarly articles provided to the university are stored, preserved, and made freely accessible in digital form in DASH, Harvard University Library’s OA repository. [Digital Access to Scholarship at Harvard,]  Many of our faculty learned about how their works could be located in DASH, and that this would be a great access point to provide links to the MOOC students.

Additionally, I witnessed some faculty exploring other open repositories (subject-specific or other institutions) with the express purpose of finding syllabus materials that matched their pedagogical aims, which were also open and freely linkable. This helped avoid the permission two-step, and routed us back to strategy no. 1.

Meanwhile, many faculty still felt they needed to use a specific article that was previously licensed to the publisher. At HarvardX, there is a very small team that will request, or guide faculty and staff in requesting, a free permission from the rights-holder for use in the HarvardX course. However, seeking this free permission may substantially limit the material they can acquire. Permission will likely come with some conditions and restrictions (for example, it may cover only a single semester), and there must be plenty of time for the permissions process. Lastly, the faculty should prepare for adjusting readings as necessary, if permission is not granted.

In my experience with all the HarvardX classes, many publishers were wary of granting permission, much less free permission. Some had never even heard of MOOCs. The responses varied.

For example, there was a negotiation for a chapter from an intellectual property law and economics book published by a large company (across the Atlantic), to be used a MOOC course. They asked for $2,500 for permission to use the chapter (note: the chapter was 17 pages from a 2001 publication). We replied that this was a nonprofit, free course, and we had requested free permission. They responded with a $1,800 offer. Again, it would have cost them nothing to give permission, and might have even driven up the sale of the book, which was printed over a decade ago. We even had the edX faculty member—who had published with them before and reviewed numerous articles—write to them asking for help, but all to no avail. The faculty member had to pick another article. The publisher, many of us agreed, had missed a golden opportunity to revive the sales of a book from 2001.

4. Let’s make a deal. Many faculty and staff had learned from this previous episode with permissions. Sometimes, it is best to make a deal before publication. Greg Nagy paid attention carefully when he was signing the contract for his new book The Ancient Greek Hero in 24 Hours. [Nagy GregThe Ancient Greek Hero in 24 Hours (Cambridge, MA. Harvard University Press, 2013)].


Nagy was converting his course, The Ancient Greek Hero, which he had taught for 35 years at Harvard, to a new online HarvardX module. At the same time, he was in negotiations with Harvard University Press (HUP) for the textbook. He desired the textbook to be free and accessible to the HarvardX students, and wanted the ability to update the text for the class, should he need to for pedagogical reasons.

In a first for both Nagy and HUP, a contract was drawn up that had Nagy forego all his revenue from the sale of the print version of the book to gain an open and free copy of the textbook. The contract gave Nagy the right to make an OA copy, in addition to a HTML version for use with his edX course. The HTML copy could be enhanced with multimedia to enrich the user experience for the students. And lastly, it gave him the right to post the OA copy to the Web site of the Center for Hellenic Studies, where Nagy serves as director.

Other faculty heard about this agreement and, as a result, some faculty authors have “gone to the mattresses” for OA access to get similar deals. One current negotiation is between a faculty author creating a MOOC and a major textbook publisher. Reportedly, the faculty member is refusing to sign the publication agreement for the textbook unless it contains similar OA clauses for the HarvardX class access.

In my experience, when the faculty are fully informed of their options, and have a clearer understanding of their own publication agreements (and the pitfalls), they are likelier to ask for a different agreement, or amend the current agreement.

More to come…

One More MOOC Post: Copyright, Licensing, and the Publishers

Since it is the Year of the MOOC (or was that last year?)  I figured I’d post my thoughts and strategies on working with publishers to grant MOOC’s what they often need: textbooks, books, readings, etc.

Much of classroom pedagogy relies on the read & lecture model.  MOOCs have made an attempt to “flip the classroom,” but there will always be classes that require readings – which can be introductory or advanced.  Some of these come in the form of journal articles, some are book chapters, some have workbooks (or interactive readings) and some are just straight textbooks.

How do we deal with these readings when the majority of them are copyrighted? (leaving out, for the moment Open Access works).  A few strategies have moved forward in the MOOCsphere that I have observed.  I have used some of these strategies, or worked on their implementation, and I think sharing these might help the community at large, whether you are a Coursera-ian, edX-ian, Udacity-ites, or any other MOOC person, place, or product.

These are by no means a complete list – but each has their own unique advantages, but also some drawbacks.   I have given them names based on the thrust of the strategy.

  • Let Their (Student) Fingers Do the Walking
  • The “If You Can’t Beat ‘em, Join ‘em
  • The Permissions Dance (or the Permission Two-Step)
  • Let’s Make A Deal

For the next two weeks I will discuss each strategy, its relation to copyright/licensing concerns, and note any successes or failure that I have encountered.  Note: these strategies (and their silly names) are my work and opinion only, and in no way reflect the opinion of my employer.

First up, Let’s Make A Deal….

The 2013 Hack IP Challenge

I helped organize the first Hack IP Challenge that introduces students to a “live” intellectual property (IP) challenge facing Harvard University:

Thousands of users have already registered for edX/HarvardX, the free online education platform launched in 2012 in partnership with MIT.  Courses offered range from the popular Intro to Computer Science (CS50x) to Human Health and Global Environmental Change (PH278x), and more across the sciences and humanities. Users can access interactive coursework, videos, and learning tools for free. Enrollment is expected to climb steadily as new courses are developed.

Enter the Hack IP Challenge. With early indications of success, HarvardX leadership seeks to set precedent with the content use policy.  Hack IP tasks teams to research, develop, and pitch their vision for a content use policy framework that will help institutions better utilize the edX platform and promote the goal “to research how students learn and how technology can transform learning–both on-campus and worldwide.”

In a weekend-long immersion setting, IP Hackers will present their proposals to those who are shaping the rules under which Harvard and its partners in edX (and future online education efforts) provide education to millions of people. These decision-makers are looking for new ideas from student-participants, and may choose adopt some proposals or follow up with teams and individual students after the weekend.

Featuring Professor Larry Lessig, Dean Martha Minow, Professor Jonathan Zittrain, Jonathan Hulbert , Mark Chang, Aaron O’Hearn , Arial Diaz and Kyle K. Courtney (me!)

Check the event out at and on Twitter: #HACKIP2013

I did a live, short Spreecast video last week about the issues involved:


New site, new friends

After an eternity in limbo, I am happy to launch this site parallel to some “nice press” about my work from the Library Journal.  For those of you that do not know, Cheryl LaGuardia, Research Librarian extraordinaire, is also the columnist for the wildly popular Library Journal column (and aptly named) “Not Dead Yet.”  She is an excellent colleague – but I turned a little red reading her fully glowing endorsement of my copyright work (and some of my other teaching and writing) in her most recent column titled “Copyright and Libraries – Help!Thank you Cheryl! Prepare to receive the equivalent kudos in the form of chocolate treats at our next meeting.

While I never thought I would be called a “library copyright deus ex machina” (Cheryl, can I put that title on a resume somehow?), I hope my work speaks to a much larger assertion I have always offered since joining the world of libraries: Librarians should be (and already are in many cases) the seminal go-to experts for copyright. Why? Two quick reasons:

First, from the origins of copyright in this country (1870 Copyright Act anyone? It’s a favorite of mine to be discussed in a future post) – Libraries have played a central role in copyright law, registration, deposit, rules, policy, etc. – basically, sustaining a national copyright system.  Even now, the United States Copyright Office, is part of the Library of Congress!  We are involved by the very definition of our job, and in a way, always will be.

Second, in a brief survey I conducted in preparing the Copyright for Libraries sessions, I asked for and received some great data about how often librarians deal with copyright in their day-to-day work.  Over 50% answered “everyday” or “frequently.”  It’s a tremendous number that I suspect is on the rise – but not that surprising when you consider that the majority of students, faculty, and staff turn to the library first when they have a copyright question.  We are the face of “information and answers” (quoted from a student survey last year) and we typically house the books, journals, databases, reserves, archives, technology, and other resources which they have the copyright question about in the first place.

Today’s librarian faces an excess of copyright-related questions dealing with every facet of library services: digitization projects, virtual reference, inter-library loan, access to law, e-reserves, e-books, licensing, etc. Many librarians find themselves becoming de facto library copyright experts by reading, writing, collaborating, attending conferences, and working with informed colleagues.

It has always been my goal to to read, write, and collaborate with colleagues, either by continuing to offer sessions, talks, training  etc. here on this site, at my own institution, or at other institutions.  I learn so much working with different members of our “community at large” (Grateful Dead archivists, university publishers, museum curators, and more). A basic understanding of copyright law is essential to successfully assist students, faculty, and staff competently – and I am happy to share what I learn, see, and hear right on this page.

So again, thank you Cheryl LaGuardia, for all your kind words, and a good start to the new site.  Cheers!