A few weeks ago Publishers Weekly published an adaptation of my June 9 blog post on the Georgia State trial on their “Soapbox” page.  This week’s issue of PW contains a reply by Tom Allen, President of the Association of American Publishers.

Perhaps not surprisingly, Mr. Allen and I do a good deal of talking past each other.  He correctly observes that I don’t address the plaintiffs’ motivations for filing suit, and characterizes those motivations in ways that put the plaintiffs in a favorable light.  Not knowing the plaintiffs’ motivations, I have no substantive comment except to note again, as I did when the suit was filed, that one might hope that university-based presses would enlist the academic leadership of their universities in efforts to mediate academic matters before initiating legal action.  To my knowledge, no such efforts were ever made by Oxford, Cambridge, or their distinguished presses.

The central claim in my blog post and PW piece is that the remedy sought by the plaintiffs is inimical to normal practices of teaching and learning in universities, and would put insupportable burdens on the behavior of faculty in their development and delivery of courses.  Mr. Allen’s response to that central substantive claim is to let it slide by with the following commentary:

I won’t attempt in this space to explain how the plaintiff publishers’ proposed injunction, if approved by the court and properly administered by GSU officials, could simplify the task of making fair use determinations and obtaining permissions to use copyrighted material in an effective, timely manner.

In other words, he asserts that my claim is wrong (or worse) but chooses not to give even a hint as to why or how it might be wrong.

Mr. Allen then goes on explain how all of Georgia State’s problems, and presumably everyone else’s, would be solved if libraries would sign up for the Copyright Clearance Center’s blanket license, which is available at a reasonable price.  Maybe so, but because not all publishers are covered by the CCC license, universities would still have to go through the process of establishing the bonafides of all of the works not covered by the CCC license These would include works published by Cambridge University Press, one of the plaintiffs.  Unless the coverage of CCC licenses were universal, faculty would still be subject to the tender mercies of new university bureaucracies that would be charged with acting as copyright police, requiring faculty to provide information that they often would not have.

Furthermore, for most libraries, many of the works covered by the CCC license are also covered by other licenses that that libraries purchase directly or indirectly from publishers.  Thus the CCC blanket approach would result in libraries paying more than once for rights to some works, while still having to do onerous handwork for works that are not covered by the blanket license.  The simple solution is perhaps not so simple.  [It’s worth noting that the CCC is helping to underwrite the cost of the lawsuit.]

With all of that, Tom Allen and I agree on two important points.  He states that “when academic copying and distribution of material clearly constitute fair use, permission is unnecessary.”  I couldn’t be more pleased to see such a ringing affirmation of fair use as an integral element of copyright law from the AAP, although I expect that there might be some substantive disagreements over the clear constitution thereof. Mr. Allen also observes that the “ecosystem that binds educators, librarians and publishers … will survive this litigation over copyright infringement.”   I have no doubt that it will, but not on the terms of the plaintiffs’ proposed order in the Georgia State litigation.