BIBLIOTHEKE

Similar to the brief mentioned yesterday from 17 comp sci profs, 22 media studies scholars have filed a brief (PDF) discussing how the case relates to scholarly work and education. Long excerpt:

Amici are deeply concerned that recent legal, commercial, and political turmoil surrounding the proliferation and use of “peer-to-peer” communicative technologies threaten to chill legitimate contributions to teaching and research in this nation’s institutions of higher education. This Court and the United States Congress have clearly articulated the value of education and scholarship to the workings of the Republic. Further, both acknowledge that teaching and research often require the unauthorized copying, distribution, re-fashioning, and performance of copyrighted works without permission from the copyright holder, and thus have cleared a space within the strictures of copyright law to allow for such publicly beneficial uses. The foundation of that space is “fair use,” which, though an affirmative defense to the accusation of infringement, has granted educators a certain measure of comfort that they would not be sued by copyright holders for infringement. However, the penumbra of perceived “users’ rights” that emanate from Sec. 107 of the Copyright Act has proven inadequate to protect many important acts central to teaching and research. Within this context, the academic utility of searching, indexing, and sharing of copyrighted materials remains in doubt among educators and scholars. Doubt creates a chilling effect, stifling the most creative uses of digital technology in the classroom or in academic research. This chilling effect is the result of a fundamental misunderstanding of the nature of peer-to-peer systems. Peer-to-peer technology is not functionally distinct from other, more familiar, less demonized methods of resolving communicative processes such as sending e-mail, creating hyperlinks, and employing search engines such as Google.com. All of these functions potentially (and commonly) infringe the copyrights of others. With this in mind, we conclude that the standard set forth by the Seventh Circuit Court of Appeals in In Re Aimster is inadequate to protect the activities of educators and researchers. In fact, it is counterproductive. The problem with the standard that technologies that are capable of substantial non-infringing uses comes not from the question of capability, but from the fact that within the classroom “non-infringing” is so unclear. The Aimster standard would add another layer of complexity and doubt to the educational project. Therefore it would hinder “the progress of the sciences and useful arts.” In contrast, the unambiguous declaration by the Ninth Circuit Court of Appeals in Grokster — that the standards this Court set forth in Sony are alive and appropriate for this digital age — does grant educators comfort and confidence. Nor do certain “compromise” positions outlined in briefs submitted in support of neither party in this case protect the interests of educators and researchers. Ultimately, we wish to encourage the Court to consider that Sony did more than legalize home taping and “time shifting.” It democratized participation in the project of recording the collective memory of this dynamic nation. Sony went beyond the traditional parameters of fair use and showed the potential for an emerging set of clearly articulated “users’ rights.” Teachers, scholars, critics, journalists, fans, and hobbyists would all benefit greatly under a regime that offered them clarity and confidence about how they interact with works and the copyright system that governs them.

shamelessly lifted from BB and Sivacracy

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