Tag Archives: law

Fair Use: Misconceptions and Examples

I gave another talk on fair use last week, this time at the University of Chicago Library. The theme was “misconceptions and examples,” so after giving brief overviews of copyright and fair use, I talked through examples from several important cases. Then, I asked the participants to work through a few fair use scenarios, in pairs. We got back together as a group to discuss the scenarios at the end of the hour.

Here are the materials I used: PPT slides, PDF slides, and PDF handout. The handout, in particular, is very similar to what I used in my Teaching Fair Use talk at Loyola. All are licensed under CC-BY 4.0. Please reuse and remix them!


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Fair use quiz

In spring 2013, I created a basic quiz on fair use for the students in my section of CopyrightX. When I entered the quiz into a Google Form for use by this year’s students, I saw it would be easy to make a public copy, so I thought I would do that and post it here.

Here is my quiz on fair use.

It is a simple multiple choice quiz designed to help students review their understanding of fair use. It asks them how each of the subfactors “tilts” in the fair use analysis. After each question, the quiz displays the right answer and indicates whether the student answered correctly.

I’ll say again that this is only a superficial assessment of someone’s fair use knowledge — it’s a starting point, rather than an ending point, for studying the subject. However, I think this basic understanding is very important, which is why I’m sharing the quiz here. I’m also releasing the quiz under a CC-BY 4.0 license (though I think there’s very little there that is subject to copyright protection).

If you spot an error in this quiz, I would like to know about it. Please comment here or send me an email. I’d also love to hear if there are subfactors you think I should add to the quiz.

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The Fair Use Factors: Their History and Application

As part of my observance of Fair Use Week (a big holiday around these parts), I gave an online webinar today for ACRL. The topic was “The Fair Use Factors: Their History and Application.” The slides from this presentation are licensed under a CC-BY 4.0 International license, and I’m posting them here in PDF and PowerPoint format. Feel free to take advantage of the license, and if you participated — thanks for coming!

Update: Here’s the recording of the talk on YouTube.

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Teaching Fair Use

I gave a workshop this morning for the Loyola University Chicago Libraries. The subject was “Teaching Fair Use,” and it was in celebration of Fair Use Week. The participants included librarians and faculty, and I focused on tips and tricks for teaching fair use. (Of course, we also talked a lot about fair use doctrine.)

I’m posting my slide presentation here in PDF and PowerPoint format. It is licensed under CC-BY 4.0. I’m also posting the handout for a role-playing exercise we did in the second half of the workshop, also CC-BY 4.0.

During the question and answer period, I recommended a few other resources that I find useful when addressing copyright and fair use issues in the academic context. I’m listing them below in case folks are looking for them.

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Reviewing copyright law

I’ve been wanting for a while to put together a list of copyright law review materials. This might be useful to someone reviewing for an exam, but I’m particularly thinking of a professional who wants to solidify her overall knowledge of the subject before diving more deeply into a particular part of it. I have two teaching gigs coming up that will focus on fair use, so that’s the nudge I needed to prepare this list.

The fifteen-minute review:

For someone who’s very limited in terms of time, I would recommend using an “attack outline,” the very short summary law students sometimes prepare when studying for finals. Attack outlines are essentially a checklist of items to address in an exam. I developed a copyright attack outline during my first year as a CopyrightX teaching fellow. Here is the latest version as a slide deck and as a one-page PDF.

This outline is helpful for remembering how the different pieces of copyright doctrine fit together, which is about what can be done in fifteen minutes.

The one-hour review:

With a bit more time, I would recommend reading through an attack outline or copyright syllabus and then taking those questions to one of the many good free online summaries of copyright. These are essentially more detailed outlines of the same material. I particularly recommend the following:

Two non-free alternatives to these sites would be the major treatises, Nimmer on Copyright and Patry on Copyright. They are probably too lengthy to be useful during a quick review, unless you’re really comfortable with treatises.

Another option for answering questions left by the attack outline is Terry Fisher’s Copyright Law Map. I relied on it when creating the attack outline provided above, but it is far more detailed. It is organized as a “mind map” — some people really appreciate this as an alternative to more traditional formats.

The fourteen-hour review:

If you have time for it, a great way to review copyright law is to watch Terry Fisher’s CopyrightX lectures. In theory, this can be done in about fourteen hours — there are twelve 90-minute lectures, but someone seeking only to review the substantive law of copyright could skip the second, fourth, and tenth lectures, which are devoted to the theories underlying copyright law. If you are truly reviewing copyright, and certainly if you have seen the videos before, you may wish to speed up playback to save more time. Instructions for doing so are available at the bottom of the page linked above.

The lectures are very dense, so first-time viewers may wish to pause, replay a portion, look up a term, etc., any of which would increase the time beyond fourteen hours. I would also advise spreading the lectures out (no binge-watching!).

Videos are often tough for review because they aren’t indexed or searchable. In the case of the CopyrightX videos, transcriptions prepared by the FLAX project make things somewhat easier. Also, the 90-minute lectures are further subdivided by topic, so it’s possible, for instance, to review works for hire without watching the entire authorship video.

If you have additional suggestions for reviewing copyright law, please share them in the comments.

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Orphan works in practice: 1933

This fall, I’ve finally been reading Testament of Youth, Vera Brittain’s memoir of the years from 1900 (when she was 7 years old) to 1925 (when she was 32). I say finally because this book has been on my to-read list for over a decade. My high-school history teacher recommended it to our class in 2004. (Thank you, Mr. Porter.)

Brittain came from a family of English industrialists (paper manufacturers). Her parents invested in her education, though not quite to the extent she wanted. Nonetheless, she studied on her own after leaving school and gained admission to Oxford for Michaelmas Term 1914. Before she got to campus, war had broken out in Europe. She studied for a year before leaving Oxford to become a Voluntary Aid Detachment nurse, influenced by the military service of her brother, her fiancé, and their friends. Her book is famous for its chronicle of the war years, but that’s by no means the whole story.

I’ve reached fall 1917, and the book has been just as heart-breaking and powerful as you would expect. It’s very much “of its time,” which I think contributes to its power — Brittain is clearly trying to be as honest and accurate as possible. She was writing around 1930 (the book was published in 1933), so she rounded up her old correspondence, her diaries, and earlier memoir drafts, and relied on them heavily. She also gathered materials from her friends and relatives. She was a poet, as was her fiancé, and poetry plays a major role in the book.

At the beginning of the book there is a section titled “Author’s Acknowledgments.”  In many ways it’s a typical acknowledgments section — she thanks the Oxford don who checked a translation from Cicero, she thanks the staff of the Imperial War Museum, and she thanks a friend who provided “much generous help and encouragement.” Earlier in the same paragraph, she thanks the friends and family (or their estates) who have given her permission to quote from their correspondence and to publish their poems.

The next paragraph thanks a list of publishers and agents who “kindly permitt[ed] the use of copyright poems or long quotations,” including one by Rudyard Kipling and another by Rupert Brooke. At the end of that paragraph, she writes:

I also want to express my gratitude to the authors of the poems quoted on p. 122 (from London Opinion) and p. 155 (from the Westminster Gazette), as well as my regret that I was unable to approach them personally, because in the one case the poem was signed only by initials and in the other the long-ago date of publication was unknown.

The London Opinion poem (“A hundred wounded soldiers fill”) is a mocking-bordering-on-misogynist account of the relocation of students from Somerville (Brittain’s college, then all-female) to a building in Oriel, then an all-male college, after Somerville’s own buildings were commandeered by the War Office for use as a hospital. This took place in 1915, so I don’t think it can be the undated poem — it must be the one signed only by initials.

The Westminster Gazette poem is Kathleen Coates’s very sentimental “A Year and a Day.” Brittain’s fiancé copied it out of the newspaper to send to her from France. In the book, she gives the poem’s author and title, and it’s clear from the narrative that she can at least roughly date the letter into which her fiancé copied it. Still, this must be the poem with an unknown “long-ago date of publication.”

Brittain’s note in the acknowledgements, coupled with her publisher’s willingness to publish the memoir, suggest what I would call a “common sense” approach to copyright. I’m glad to see it existed back in 1933, and I like to think it’s making a comeback.

It’s clear that Brittain and her publisher wanted to get copyright clearance for these two poems, as they did for the Kipling poem and the others. It’s also clear that they tried to get that clearance, but they ran into trouble. For the first poem, they could not identify the rightsholder. For the second, they had the name of a likely rightsholder, but they had no way of locating her or determining if she still held the rights. Today, we would call these poems “orphan works” (or “hostage works,” if you’re a Lydia Loren fan).

The process Brittain went through is essentially what’s recommended today. She tried to identify the rightsholders in order to seek permission. When that failed, she decided to use the poems anyway, likely weighing the risk of a lawsuit against the importance of the two poems to her book. And then, she wrote that note in the acknowledgements section. It serves at least two purposes:

  1. First, it is kind. She makes clear her intention to seek permission, and she shows the unidentified rightsholders the same gratitude that she did to the authors and publishers who gave her copyright clearance and to the friends and family who provided their writings. If one of the rightsholders read it, I can’t help but think it would influence them to act kindly in return. It’s easy to underestimate the value of this.
  2. Second, she outlines (albeit briefly) how her search failed and what information she does know. She shares all the background material she has. In doing so, she does a favor for anyone trying to trace these poems in the future, not only from a copyright perspective but from a historical one.

Based on some quick internet research, it seems to me that the rightsholders of these poems never did come forward. Even now, the first poem appears only anonymously, and both poems appear mostly in connection with Testament of Youth. This makes Part II above even more important, because the information Brittain provides in her book is nearly the only information available on these poems. It’s certainly the easiest to access.

For me, this is a nice parable about copyright clearance and orphan works: search diligently, but don’t be afraid to use an orphan work without permission — you may be the one who saves it from the sands of time!

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Doing Without Bar Review: How I studied

This post is Part III of a three-part series on studying for the bar exam without a bar prep course. Yesterday, I posted about gathering study materials.

There is a lot of debate about how to study for the bar exam — the bar prep companies all take sides. When I was setting my schedule for studying the Massachusetts exam, right out of law school, I did read a bit of it. I’m sure that bar prep could benefit from scientific analysis, but as I’m far from expert, I’ll leave that to others. My strategy was simple: learn material, take practice exam, identify weak areas, repeat.

For Massachusetts, I knew there were quite a few subjects I had never studied (commercial paper, estates, trusts, Mass. civil procedure, Mass. professional responsibility, Mass. consumer protection, wills, etc.). I also knew that I would need serious review for many of the other subjects, most of which I hadn’t thought much about for a year or more. I began studying in late May for the end-of-July exam. So, I spent the first couple of weeks learning material with the Law in a Flash cards, library Nutshell outlines, and various online materials (see my last post).

Once I had spent a little time on every subject, I added more practice exams into the rotation. I practiced with the MBE online practice exam, the BARBRI Massachusetts essay book, and the MBE questions in the Emanuel book (all mentioned in my last post). Each time I went over a completed practice exam, I would identify the areas that needed work and set aside the corresponding flashcards. If I didn’t have flashcards for the area, I would write them out. This often required a bit of fresh learning/research on my part.

Then, I would focus on those flashcards until the next practice exam, at which point I would add or remove cards from the set. This was exceedingly simplistic, but it worked. By mid-July, I had done many practice essays and MBEs. Two weeks before the exam, I did a full two-day practice test using questions I hadn’t seen yet. I did my best to mimic the testing conditions; I think I even wore the clothes that I wore to the real exam. Then, I graded that exam and made a final review plan for the remaining days.

My 2015 studying was much more compressed. I made a study plan in late June, and I spent the end of June and the beginning of July studying very lightly with the Law in a Flash cards, while moving to Chicago, attending two family reunions, and going on two decent-sized roadtrips. I returned to Chicago on July 15 with the exam under two weeks away, having reviewed about half of the MBE subjects.

Then, I studied very hard, using the same flash card strategy described above. While I felt much more harried, I could tell from my scores on the MBE online practice exam that I was performing similarly to my late-July 2013 self. I spent the last few days (during which in 2013 I had just relaxed) prepping for the essay exams and the MPT.

At the time, this “strategy,” was pretty terrifying. In retrospect, of course, I’m extremely pleased with it, because I passed the exam and also got a vacation. I attribute its success to my having studied the material before – I certainly would not recommend it to a first-time exam-taker.

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Doing Without Bar Review: Gathering study materials

This post is Part II of a three-part series on studying for the bar exam without a bar prep course. Yesterday, I posted about learning about the exam.

Saving money was a major factor in my decision not to take a bar prep course. Since I had done that, I felt fine spending money on a few prep materials. I also got an extremely generous graduation gift in the form of Law in a Flash cards for the six (at the time) MBE subjects. (Incidentally, those flashcards are a great law school graduation gift. This is especially true if the graduate is eschewing bar prep, but I also shared my flashcards with covetous friends who had mounds of standard bar prep course materials.)

Materials worth buying:

Law in a Flash cards, Emanuel: I heartily recommend these. They are thorough and well-organized. It’s easy to select a subset for targeted review, but they also work well when you’re learning the material for the first time. I have the individual sets for the MBE subjects (which also formed the core of the essay exams in MA and IL). I see they also sell a special (shorter) MBE set. Some of these cards are also available in digital versions, but I’ve really enjoyed the shareability of the physical versions.

[Your state here] Essay Testing, BARBRI: Some states now make past essays available online (and they all should). If your state doesn’t, buying someone’s left-over BARBRI “essay testing” book is very convenient. I did this for both Massachusetts and Illinois. The books are fairly easy to find on eBay. They are, to be honest, not that great. They’re pricey, and the sample answers are hit-or-miss. Still, if you need practice essay questions, this is a good way to get a lot. One thing I noticed while I was studying for the Illinois exam is that the book contained essays from non-Illinois exams (and I realized this after I Googled the questions and found them free online). The answers, though, were still tailored to Illinois, so I think it was worth it.

MBE Online Practice Exams, NCBE: These are excellent. Depending on how much time you have to study, you might even want to buy them all.

MEE/MPT Questions and Analyses, NCBE: If you’re taking the MEE or the MPT, these are great.

Blank index cards: In addition to using the Law in a Flash cards, I made quite a few of my own flashcards, especially for state law.

Material you might want to buy:

Steven L. Emanuel’s Strategies and Tactics for the MBE: I bought this for the Massachusetts exam, and it was helpful. It has good tips for handling multiple-choice questions, so I would recommend especially it if you aren’t confident in your overall test-taking abilities. However, some of its practice questions are the same as the NCBE Online Practice Exams, so it’s a bit redundant. I didn’t use it at all when I was studying for the Illinois exam.

Free materials:

I also used a lot of free materials that were very helpful.

While studying for the Massachusetts exam, I arranged law library access for the summer and took advantage of study aids available there. I found the Nutshell books particularly helpful, especially for subjects I was learning for the first time. I didn’t do this when I was studying for the Illinois exam (which I did in much less time), but I missed it.

I used some law-school Westlaw points to buy Suzanne Darrow-Kleinhaus’s Acing the Bar Exam  and Steve Friedland’s Exam Pro Bar Prep Workbook. I wouldn’t have paid money for them, but I did put them to use.

I searched the internet for summaries of areas of law. This was particularly helpful for state law, since most of the print materials I had were multi-jurisdictional. Law firms often post short summaries for their clients or associates (with benefits to their SEO, I assume). I used Jenner and Block’s excellent Illinois Civil Practice Guide while studying for the Illinois exam. Bar association websites and journals also discuss recent developments, and the judicial branch itself posts a good deal of useful material. When I was studying for the Massachusetts exam, I used the state website to learn about the structure of the courts.

I used my casebooks. I wouldn’t recommend reading casebooks as a bar prep technique, but they were great for quick reference. It was particularly nice to use the ones I had studied from, because I could connect back to specific details I remembered.

I read, watched, and listened to Supreme Court roundups and other discussions of current events in law. This brought me up to speed on areas of the law that had changed since I was a 1L (which is when I studied most the bar subjects, including Con Law), and the prevalence of podcasts and videos on these topics helped when I needed a break from reading and writing. It would certainly be possible to overload on this — it barely counts as studying, really. But, it’s also a reminder of the many ways that law is really important, which is helpful when you’ve been studying its illogical intricacies all afternoon.

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Doing Without Bar Review: Learning about the exam

Doing without a bar prep course is not for everyone, but I highly recommend it to people who remember their first year courses, want to save money, and/or think it sounds like fun (yes, that would be me).

I took and passed the Massachusetts bar in July 2013 and the Illinois bar in July 2015. I passed both on my first attempt, and I did not use bar prep courses. In my self-guided study, I benefited from many other people’s blog posts on the subject, and I’ve been meaning to share my own experience for a while.

The first step in studying, especially if you haven’t taken other bar exams, is to learn a bit about the format of the exam you’ll be taking. You’ll want to determine the schedule of the exam, the format of its various components (essay, multiple-choice, etc.), and the content tested in each of those components. It’s also helpful to check where the hard deadlines are: do you have 30 minutes for each of six essays or 3 hours to do them all? Having the format in mind will help you as you decide how to study, and the subjects will tell you what to study. I found that the state bar examiners’ sites were a good starting place for all of this info.

The state websites may also give out advice. Read it! For instance, the Massachusetts bar shares a one-pager on writing the essay exam. It wasn’t revelatory, but it did help me to think about what the graders would be looking for. I also saved it to reread in the final days before the exam — at that point it was very calming to revisit its simple tips.

Once you’ve squeezed out all the information you can get from the state site, go to the site for the National Council of Bar Examiners or any other group that writes a multistate component you’ll be using. They too share information about exam content, as well as tips for studying. The MBE and MEE Subject Matter Outlines were a huge help to me.

Then, go over the information you’ve gathered. Do you have a sense of what each subject entails? Of their relative importance? If you’re missing information, it’s worth diving into a bar-prep message board where your fellow examinees are sharing info about the exam. Remember, though, that one of the great benefits of avoiding a bar prep course is avoiding your crazed fellow examinees. I strictly limited the time I spent in such places, and I’m glad I did.

However, some info is worth going to the message boards for. For instance, many of the bar prep companies make frequency charts of the essay subjects, such as this Kaplan chart for the Illinois exam. These charts are quite valuable, as they enable you to focus your study time on frequently-tested topics and to worry less about, e.g., your state’s claim that income taxation is tested in the essay portion. See if you can take a look at a classmate’s or find one online. Even an out-of-date one is useful.

I’ll be posting tomorrow about the study materials I found most useful and on Wednesday about my studying strategies.

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Libraries, hotspot lending, and CIPA

I was excited today to see that the Chicago Public Library lends wifi hotspots. And then I learned that this is old news. The CPL program and a similar one at the New York Public Library were funded in part by the Knight News Challenge back in 2014, and they weren’t the first. (I’m not sure what was, but Providence Community Library started one in 2013.)

Here’s a round-up with links to a few libraries’ current pages explaining their programs. I’ve also listed funding sources where possible because I think a bit of skepticism is healthy here. (Though I don’t see anything too fishy.)

After I got over the fact that I should have rejoiced about this awhile ago, I realized another reason to be glad.

The Children’s Internet Protection Act requires, among other things, that libraries receiving federal funding for internet access install filters on their computers blocking access to images that are “obscene, child pornography or harmful to minors.” (The final restriction applies only to computers used by minors.)

If this sounds unconstitutional to you, you’re not alone. (In fact, you’re in the company of Justice Stevens and Justices Souter and Ginsburg.) Libraries and other internet freedom advocates have been fighting this law since it came into force. Nonetheless, it was upheld by the Supreme Court in 2003, and libraries have to follow it. Here’s a great summary of the history by the ALA, and here’s an accounting of the harms caused by CIPA, from EFF.

As I’ve said, though, CIPA applies to the library’s computers. It doesn’t seem to apply to hotspots (or to laptops patrons bring to use in-library internet). And fortunately, the libraries I checked with (Chicago, Providence, and Seattle) aren’t filtering their hotspots on their own.

I’m often frustrated that law doesn’t change as technology does, but on this occasion I’m rejoicing about it.

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