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Can I Fair Use It? Crowdsourcing Fair Use Knowledge

Expanding fair use of library materials by texting fair use scenarios to a pool of experts and sharing their responses.

Photo of Jack
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Describe your project.

Fair use is fundamental to research, teaching, news reporting, and free speech — but what does it really allow?

In this project we will:

* Gather fair use scenarios from libraries, legal aid organizations, and individuals using a self-guided questionnaire.
* Text the scenarios to groups of legal experts. Each attorney will text back a one-line prediction: would a court find the scenario to be fair use?
* Aggregate those predictions into a summary and return them to the user.

For the pilot, we will build and test a technical prototype with real users. We will publish a curated set of fair use questions and answers, and a research paper that evaluates the effectiveness, scalability, and limitations of our approach.

How does this project advance the library field?

More copyright questions arrive at the library each year. Libraries are beacons for the open sharing of ideas — but in the 21st century, sharing ideas means navigating copyright. Libraries must take the lead in narrowing copyright's gray areas.

Our project will:

* Identify areas where fair use is unambiguously allowed, broadening library use.
* Identify areas where fair use requires legal reform.
* Test a new crowdsourcing approach for libraries to connect patrons with subject matter experts.

Who is the audience and what are their information needs?

The audience includes:

* Librarians and patrons who want to make broader use of copyrighted work.
* Library copyright officers and copyright attorneys who want to provide better advice.
* Advocates who want to find areas where copyright (or other legal doctrines) can be improved.
* Libraries that want new ways to gather and share information from subject matter experts.

Please list your team members and their qualifications.

This is a joint project of:

* The Harvard Library's Copyright First Responders, a team working to advance teaching, learning, and scholarship through community engagement with copyright. (https://osc.hul.harvard.edu/programs/copyright/first-responders/)
* The Harvard Library Innovation Lab, a design and development lab working in the Harvard Law School Library. (http://librarylab.law.harvard.edu/)

Organization name and location (City, State).

Harvard Library Innovation Lab and Harvard Library Copyright First Responders
Cambridge, MA

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Photo of Olivier

I think your idea is interesting and it offers some promising inroads in strengthening copyright knowledge within the library community. It seems to me that this project offers to "push" specific knowledge from a knowledge base that already exists (CopyrightX and others) and to foster the creation of a more elaborate one from interactions with librarians and other stakeholders. 
Please allow me to raise a few concerns - perhaps you have already though about them, please let me know.
1. Offering legal advice is a tricky service. Usually, one pays for it and assumes that the lawyer would be ready to defend their position in court. Also, lawyers have insurance and other means to mitigate the risk. How are you going to approach the question of providing legal advice as part of your service?
2. Devil in the details. Answering copyright questions can seem like pulling teeth - one has to be aware of many details of a particular situation. This involves a special kind of reference interview (in my mind) and I have rarely had successful outcomes with email exchanges. One needs to discuss options, ask questions about the context, the work being used and the institution. Phone conversations and meetings are the preferred medium in those cases. I am curious about your choice of text messages as the conduit of these exchanges...
3. Governance of risk in libraries. As in most complex organisations, such as cities, universities and school boards, Librarians may not the the deciding parties when dealing with tricky institutional issues. In-house legal counsel and other stakeholders (deans, city boards, etc.) may adjudicate the final decision. I find that it is almost more important to maintain good relations internally so that when a copyright question arises, we can follow the right path (e.g. influence the decisions of those in power or ultimately responsible). There are tools librarians involved with copyright need to work on, such as institutional policies and advocating for best practices. It seems to me that your proposal side-steps these internal governance issues - copyright has seldom been a yes/no & text me the answer topic. How are you going to tackle the governance of copyright issues for those you engage with?
In closing, please note I really like you project but I wanted to pass on these questions to better understand it.

Photo of Jack

Hi, Olivier. Thanks for these thoughtful questions.

First let me emphasize that this is a research project -- we don't know if it will work! We want to build a technically-simple prototype, instrument the heck out of it, open it up to a small group of 50 to 100 questions from opted-in users, and test every variable we can think to test.

(I have many questions, but for example: what's the quality-vs-quantity tradeoff in asking for more or less feedback from each individual expert? Do experts enjoy participating or does it feel like work? Does a human-expert-guided intake questionnaire result in better answers from the group than a self-guided questionnaire? Do experts respond differently than law students, librarians, or laypeople, and if so, how is their understanding of fair use different? Do users accurately understand the results we give them?)

We think publishing what is basically a survey of expert opinion on 50 or 100 fair use hypos is itself worth the price of admission -- as lawyers, we'd love to read the results. Beyond that, we'll report what we tested, which design seems to work best, and whether some version of this idea works well enough to deploy at a larger scale.

Turning to your specific questions:

> How are you going to approach the question of providing legal advice as part of your service?

This is a question many legal startups are facing -- legal tech can bring better access to justice, but is limited by both malpractice liability and unauthorized-practice rules (which exist for very good reasons).

For the pilot phase, we'll avoid this issue by working with opted-in research participants, and will work with the Cyberlaw Clinic to be sure we handle those issues correctly.

If the pilot goes really well, then we'll dig into the social-legal-technical problem of figuring out how to scale it to a wider audience. Possibly that could be done through sufficiently clear waivers and explanations; possibly it will require users to go through a reference librarian or attorney.

(It may seem backwards to first run the experiment and then figure out legal questions, but I think this is the only way to make progress. Legal advice is about balancing risks and rewards, but the rewards here are unknown. We have to start by clearly establishing the value of innovation.)

> Answering copyright questions can seem like pulling teeth ... I am curious about your choice of text messages as the conduit of these exchanges...

For good or bad, this isn't meant to be an ongoing conversation -- it's a one-time statement of the scenario, and a simple prediction (despite limited information) of the result if a court were to face that scenario as described. Text messages are intended to make that exchange as easy as possible for experts to participate in. (Emails might be another good alternative, but we do want to encourage quick, lightweight responses.)

There's a lot you lose with this approach! But what you gain is a low cost survey of a wide array of experts. That's an attempt to address two issues: first, the problem of fair use being avoided because advice is too expensive. Second, the problem that fair use advice too often boils down to: "you are taking a risk that is hard to quantify." If we're lucky, this approach may reveal that the gray areas aren't as gray as we thought. (Or conversely, it will thoroughly document the costs of ambiguity.)

> How are you going to tackle the governance of copyright issues for those you engage with?

I'll let Kyle Courtney at Copyright First Responders speak more to this (I work at the Library Innovation Lab), but CFR is one great model for this kind of institutional engagement. As you say, it depends on a network of human beings representing fair use interests throughout the system. Our technical approach won't begin to replace that.

What we *can* do is test legal assumptions and find areas where there's more consensus than we might have realized -- putting a valuable advocacy tool in the hands of those human beings.


I hope this is helpful. Thanks again for the questions, and let me know if you have other thoughts or advice.

Photo of Olivier

Thank you so much for this detailed answer! Very useful.

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