A publisher that sells educational materials has accused the Toledo Public School System of intentionally and willfully violating its copyright by either encouraging or allowing teachers to copy its training guides–supposedly verbatim–by transcribing them onto the school system’s computers then distributing thousands of them among the system’s teachers.
Align, Assess, Achieve LLC (“AAA”) sued the Toledo Ohio Public School System in Columbus Federal Court last Friday. AAA says the school district bought 10 copies of books in its series, Common Core: Clarifying Expectations for Teachers and Students, “apparently for the sole purpose of stealing and widely distributing the materials by having TPS teachers illegally transcribe these materials.”
AAA says that the books were sold pursuant to a license agreement, under which the school district was explicitly limited to using one “pacing guide” from the series for each kindergarten, first grade, and second grade math and English teacher. Despite these restrictions, the AAA determined in August of 2011 that the school system was not abiding by the license and, instead, “had engaged in massive infringement of the AAA copyrighted works.”
The complaint alleges as follows: “Unbeknownst to AAA, TPS had engaged its teachers over the summer to take AAA copyrighted works and transcribe them – word for word – into electronic word processing documents. On information and belief, this massive copying of the AAA copyrighted works required numerous hours on behalf of TPS teachers and was done without any authorization by or knowledge of AAA.”
Obviously, these are merely allegations at this point. The school system has not had the chance to respond yet. However, this situation points out the need for everyone in your organization to understand the parameters of copyright and “fair use,” or, to put it another way, what you can copy and what you can’t. First rule of thumb: if it comes with a license, read the license and comply with it. If in doubt, don’t copy it. Second rule of thumb: if the license is unclear or there is no license, ask for permission before you copy. Don’t copy the work unless you have written permission to do so. Don’t assume that you can copy someone else’s work if you give them credit for it unless they have given you written permission to do so. In other words, giving attribution is not a defense to copyright infringement. Third, you may be able to copy portions of a copyrighted work (and in some rare cases, the whole work), assuming your copying would constitute fair use under the Copyright Act.
Generally, to qualify as fair use, you must be using the work for purposes of commentary, criticism, news reporting, and scholarly reports. While using portions of copyrighted works for educational use can sometimes qualify as fair use, the wholesale copying described in this complaint likely will not cut it, particularly when it destroys the commercial market for the product being sold. Despite what your brother-in-law told you, it is not true that the copying will automatically qualify as fair use if you use less than a certain percentage of the work or a specific number of words, or a certain number of musical notes–at least not under US law. Whether a particular use qualifies as fair use depends on all the circumstances and, ultimately, can only be definitively decided by a federal court. I would encourage you and the entire Toledo School System to check out The U.S. Copyright Office’s Circular 21, Reproductions of Copyrighted Works by Educators and Librarians. In addition, you can review this previous post for the big picture rules of fair use. While nobody wants to waste time reinventing the wheel, it sure beats being sued by an angry publisher seeking statutory damages and attorney fees in Ohio federal court.