Hello, and welcome to a very special ALA edition of copyright chat, recorded directly from the ALA annual conference in New Orleans Louisiana. Kyle Courtney is our guest today, and he is the copyright advisor for Harvard University, working out of the Office for Scholarly Communication. He works closely with Harvard Libraries to establish a culture of shared understanding of copyright issues among Harvard staff, faculty, and students. His work at Harvard also includes a role as the copyright and information policy advisor for HarvardX. His Copyright First Responders (CFRs) initiative was profiled in Library Journal in 2013 and he was named a National Academic Library Mover and Shaker in 2015.
Sara: Welcome! Today, I have Kyle Courtney with me in the beautiful New Orleans, Louisiana. We are here for the American Library Association annual conference and I was able to get a few minutes of his time. Amazingly, I’ve been chasing him around for quite some time trying to get him on the show so welcome, Kyle.
Kyle: Thank you, that’s not true by the way.
Sara: We do like to heckle each other so it will continue. So, Kyle I wanted to hear a little bit about your fair use evaluator project. I know I had signed up and I was getting text messages of fair use scenarios and giving some opinions, “Is this a fair use? Yes/no.” And I wonder what has happened with that and what’s it all about so please tell us.
Kyle: Sure, absolutely. So the whole foundation of the project is that we want to expand fair use knowledge further afield than just the experts that are in libraries and lawyers currently. The idea is that more knowledge about fair use is a benefit to society in general, are to scholarship etc. A citizen should know what rights they have especially in this day and age when they’re engaging with technology much more than usual so the concept was could we create a decentralized network of experts that could receive questions from the public at large and get answers about fair use so in order to do that we had a pilot at least of the program and the Knight Foundation generously granted us as part of their library news challenge to create a system (a pilot system, so to speak) that would send out every day fair use hypotheticals that we had gathered over the years and get votes on them, basically forcing the narrative to “yes or no.” A lot of the times lawyers and experts will answer, “It depends.” I mean you’ve done it, I’ve done it, so conceptually how they felt, even if they’re sixty, forty, you know that you’re more than likely to be fair use—something along those lines. So the idea was to measure this in the pilot and also play with the technology for the first time.
Sara: So, that’s interesting, because I thought (now this is a misunderstanding, I suppose on my part as a participant) that the idea was maybe we get a consensus of experts, and then you can kind of map out like on a spectrum you know “these things generally are fair use,” “these things aren’t,” but your goal is to actually have, you know, every day folks be able to reach a bunch of experts to get a consensus. Is that the idea, or?
Kyle: That’s the end goal. So what you talked about there, first, was the result of some of the data that we didn’t anticipate getting, but that was very helpful. So the first few days we sent out some real obvious “yes” or “no’s” to kind of get a parameter, and then we went into more explicit kind of fair use scenarios that are taken from the news, or case law, or actual questions from the Copyright First Responders network and those were harder, but it’s still gave us a measurement which I think was interesting, so the outcome of the data was just a bonus for this and we’re actually doing this with— So that the Knight Found. Grant was won by myself, Jack Cushman at the Library Innovation Lab and at Harvard Law School, and Katie Ott who’s now a reference librarian at Stanford Law. And we got all this data, and so we want to do something with the data too, because we had all these experts that were agreeing, so every day they got a scenario and they voted “yes” or “no,” and we’ve never done that before, and I think—amongst our group, amongst our experts—and so we got some data, but ultimately again that idea behind here too and thanks to the Knight Foundation kind of extending this pilot we learned a little bit about how we might make a public facing version of this. We’re certainly going to expand it to a larger audience. We had to (for technical reasons) keep it to approximately thirty, some were picked by me some were picked by other folks on the project, and the idea is—could we scale this up in some capacity, because the technology that we had on the back end that sent texts every day, we learned about that. In fact some of the first couple days were a little rocky, because when you send the same exact scenario out over from one text number, it sets off every one’s spam detection. And you know, we were looking like text spam at some point, so we had to then get individual numbers. We had to learn about the technology in doing effective crowdsourcing. Now, crowdsourcing a law is relatively new, but we thought fair use would be a good test-case. I think all of copyright would be interesting, but certainly fair use because of those factors as hypotheticals, the factual nature of this, but more often than not, we did get some good results from this which we’re turning to, but then again at the same time we’ve got some typical results. Whether or not fanfiction is fair use based on the hypothetical we laid out was almost split fifty-fifty. Same thing with some of the cases we had for online learning and usage of film and stuff so it was interesting to see that the hard ones still remain hard even amongst experts, but remember we’re not necessarily looking for legal answers for crowdsourcing this, so the public gets educated about this, so that if we have a question that could be in the form of a drop down box or something—they give us as much factual information as they could and then ask, “Hey you think a court would find this fair use or not” or “Do you think that you, personally would advise somebody that’s fair use?” And I think that would help them, and then if we—if it’s a “no” by 1% or 2%, we actually want to build in some educational links, so places where they can go and learn about why it’s more gray—you know—than the simple “yes” or “no,” but also for those ones that were nearly 100% “yes” or nearly 100% “no,” there’s learning there too to be had and to build in some kind of analysis in the—in the thing that says “why,” would be interesting—point to a case, point to a statue, or have a page that serves in the texting area so again we’re experimenting with that. Ideally the public types in the question, a random group of thirty to sixty experts get it, they vote, it takes them—you know—five seconds to vote, most of them did it in the morning, some of the afternoon, and within twenty four hours, you get some sort of result. We think that would be helpful to help “myth-bust” anything about fair use that’s out there, and maybe if that expert felt like it, they could add a sentence or two if they had the time. You know the texting format as a device of sharing knowledge—you know—we make you know emoji’s and “I’ll meet you there” and all that, but what if we could—you know—reach people that way in learning about fair use that would be interesting.
Sara: I think the ability to add a sentence or two is kind of key, because in those, a lot of times, people don’t ask the easy questions right, I mean folks.. folks know that they can do this, that, or the other for teaching, or you know “make one copy of this,” but when they get into those tougher questions, those are—that’s when they’re wanting the help and that’s when it’s harder to say “yes” or “no” and you want to be able to explain yourself right.
Kyle: Yeah, yeah absolutely and one of our experts was, Nancy Sims who—you know—she tweets just blocks of stuff, and I don’t think it’s a secret, because she tweeted out you know “O. M. G. this ‘Yes/No’ format is so hard!” I would consider her, you know, an expert in our field of about spotting fair use. But again I think again, forcing that analysis, putting our thumb on the scale so to speak, and saying, “Look if it really came down to it do you really think it’s a fair use or not. I know it’s against the ethical norms right? Or at least the practice that we all do or no we’re never going to tell them “yes or no” unless it’s an absolute slam dunk. But there’s learning in the fact that you can say—hmm, more often than not…the extra—We didn’t want to add the extra right away, because I didn’t want people to start to, you know, put a small appendices on their “yes or no,” you know, that you know—lawyers can text all day, couldn’t we—you know, we used to be paid by the word, but now we write—you know—a lot all the time, so that ideas that I didn’t want to give them room (this includes yourself because—because you were an expert that joined us) that idea that like, however—you know—“yes, but there are,” “however,” or you know, “it depends,” but I said, “yes, here.” I didn’t want that. I wanted the real, honest, “yes or no,” and I think the public would understand that better.
Sara: Well also that that leaves you know the question of where we’re going to have a pretty big disclaimer, right? Because I’m happy to say, “Yes this is a fair use,” all day long, but in my day job as a copyright librarian, I am not allowed to do that.
Kyle: You know we had a you know we had a great clause, we had made up for the future (obviously this is not publicly accessible quite yet), but that idea of like “this is an information site, this is information only, this is not legal advice—you know—seek your own legal advice, seek your own counsel.” A number of websites in our field have that, right? That’s kind of standard language. So if we ever do have this public facing dream, certainly that would be part of it, and that this is information service only. But again, much like a lot of law librarian practitioners, you know, and you and I have both worked with many law libraries in the past, they can provide information without practicing law—right, you know—they’re walking the line. I remember learning that in my reference class. You know, that idea that you could work in a law library, and provide people with what the law, is the information, etc., and that’s why the anonymity (which we didn’t get to) was a critical component of this. So, no one was identifiable, it was all—you know—it was names of animals you know.
Sara: I had a hard time even identifying my own answers, ‘cause I got some—I got some animal name, they said, “This is your name” and I forgot. So I was looking at the results and saying, “I wonder what I said to this?”
Kyle: Yeah, Yeah I think I was, “A. Aardvark,” because I was the first one, but that idea is that we didn’t know who was what and that was critically important, in fact that’s why a lot of people agreed to sign up and not be named. Certainly they could say I participated, but they did not—we could not track their answers, and we didn’t have their phone number aligned with their name, so we’re very careful about that obviously. So the anonymity allowed these experts to then really weigh in (as you said) as they wouldn’t in their day job, and I think that gives us another leg up on this thing actually maybe working in some capacity. You know anonymous legal counsel is kind of an interesting thing, but this is anonymous myth-busting of fair use, and you know tying what a artist, or a comic book writer, or web developer might do to the fact that they don’t know enough, and could they have this pool of experts instead of—you know—paying three hundred an hour—you know—up front, maybe they learn it on their own and do this. You see this on You Tube and everywhere else all the time; people are learning and asserting fair use.
Sara: That brought me to a thought about, when you were talking about saying “yes, but” or “it depends” and all of the hemming and hawing that we like to do as lawyers. I thought about that and I thought, at the end of the day the judge has to decide a clear “yes” or a clear “no.” They don’t get to say, “it depends,” and so I think what we’re doing is predictive analysis, right, of “what would a judge do?” And a judge doesn’t get to—you know—sometimes they get to kick it back to the lower court, right, and they say, “well it’s a fact question blah blah blah,” but you know assuming that they’re making a decision on fair itself, they don’t get that—you know—that hemming and hawing ability so…
Kyle: No, no, and that’s you know how the system works, right? So it’s a decision has to be rendered at some point, you know. Again, I like that idea of predictive analysis, or we’re getting ahead of the court case. Of course, I wish no one has to go to court for fair use ever, right? I honestly do. I wish, you know, we could have fair use to be used as it’s intended to be used—X. Y. Z. and not battle over it—however, those battles have helped us determine the scope, especially in the modern technology century that we’re living in to be able to do more than we had in the past. But again, yeah, there is no true yes or no from attorneys, but there is true “yes or no” from the courts and those decisions allowed us to lay a litmus test for what we think can be done. So if anything, the experts were drawing on their capacity as information professionals about copyright to then risk mitigate for the question, determine the “yes or no,” and then share that anonymously. I think it works well and at least we had a very high response rate we had very few dropouts. Even people were doing on vacation (which I would never ask, obviously), but the fact that it was very simple, a “yes or no,” usually in the morning—you know—via phone (which they’re already on anyway) added to the success rate. I remember Jack, which was like really like, “We had an eighty-something percent response rate every time.” And that’s kind of amazing that we had that. And I think that could carry over into the next version that we’re doing, which we’re trying to expand upon, hopefully, you know. It’s well into summer here, and we’re—you know—it’s one of those things where time slips away, certainly fast for both of us and Serena. But, I think this has enormous value, and so that’s why I think the Knight folks have no problem with extending it. Plus we’re pretty cheap, everyone—you know—was a friend or colleague and volunteered their “yes or no” for thirty days straight—you know—was just all of August, right (if you recall, was only for thirty days) and additionally the software wasn’t really that expensive, and Jack and his team and Katie did a great job in coding and making it work and get over the technical barriers, so I think it’s cost efficient too, so we get a high value for—you know—learning and understanding fair use for a relatively low bar for time and cost
Sara: I think it’s fabulous project. I was really excited to be involved in it and I’m excited to see where it goes. What I’d love to see, and maybe you already are considering this, is after the project continues with actual patrons or users, asking questions or the public in general, that at some point we have kind of or an article written up about a synopsis of like, “here’s what we’re finding,” right, with all these questions and answers, like here’s some summaries of all of that what experts think about fair use.
Kyle: Yes… So, you know once we start getting the data then we look at it we’re like—wow, this is, we should harness this in some capacity or do something with it! Yes there is a woefully neglected draft that we’ve shared amongst ourselves from the previous time and we revisited it a little bit this year during the fair use week symposium at which the Knight foundation also let us talk about this project and sponsored some of that regard. So we were excited to kind of reintroduce ourselves to the project like, “This was good! Why did we write this up?” So the plan is to write it up, and to kind of forecast on where we see this thing going, and then actually the article would be the road map to trying out this thing which might be public facing. Although, I think at first, we will do much like we test it with the experts will do a “test public” so to speak, and it will select—you know—a dozen or so people to do this. The interface is what’s critical there. So, certainly the thirty days of fair use scenarios we did, we chose for reasons that are pedagogical (if you will)—you know—easy ones at first, then harder ones, and thematic then we actually by the experts submit some. And we made them so that they could be answered “yes or no,” right (so we had to, but to cull them and edit them a little bit), but it worked—it worked well. If we got just a straight text from the public at large—you know—that would be tougher because—you know—like the reference interview you wait to the last question to really know what they’re asking, so, we were thinking at the time period of—oh, maybe a drop down menu and they select a type of medium, type of use, type of thing, and then they put in the facts necessary and they put in the data or something. Something where we could then craft that or maybe could be automatically crafted (we’re not sure) into that tight little hypothetical that we had for you every day during those thirty days in August.
Sara: You know, I’m thinking you’re going to involve some crafting there, yeah probably not automatic, because also, I’ve had that experience, with a kind of copyright reference interviewer where you know, they have a question and they don’t even realize maybe it the copyright question, someone else identifies it as a copyright question it gets to me, and then I have to identify exactly what they’re trying to do, what they’re—you know—what their real question is so it’s a lot of culling.
Kyle: So that’s why we thought the—with the—when we first pitched this with the Knight foundation would the libraries be the medium interactor between the public and the experts? So it comes into a library, because—you know—that’s the whole idea behind this was that—jeeze, libraries—if they don’t have experts like us on campus—you know—or are still getting copyright questions at the front desk, or the circulation desk, interlibrary loan, you know the reference, to special collections, technical services, so what if they could take in some of the public’s questions (cull it maybe, because they’re information professionals, often language professionals), and then dump it into our system and then they can get a direct response. So maybe that culling is done by librarians and information professionals that are receiving his questions—that would be helpful, because we—they’d be more likely (especially if they’re trained on the system) to know what quick facts, what quick summary, and what information would be needed to make a successful “yes or no” hypothetical.
Sara: I think that’s right, and I think that might be the way to go, but it will be interesting to see how this develops going forward. And speaking of the reference desk, ILL services—copyright is everywhere. You and I know this, and I think more and more libraries are realizing this, because they’re hiring more copyright specialists, but not everyone has the funding to hire someone specifically to do copyright, and so I’m really impressed with your Copyright First Responders program. I wanted to give you a chance to kind of talk about that for a minute. What is that about? What’s the goal? Tell us all about that..
Kyle: The goal is to put myself out of business. That’s the goal—that idea that my brain gets shared with the world over time drastically. But, no, for real the same problem that I just outlined like libraries are getting copyright questions, it doesn’t matter what type, where they are, or what department. We, five years ago, did the first cohort of the Copyright First Responders, which again was decentralized expertise across the libraries at Harvard for answering frontline copyright questions—again finding the absolute green lights in some area, understanding better about public domain and copyright and fair use and section 108 libraries and archives exceptions, you know specialized training, because we think the librarians that are at the front lines are in the best position to answer questions from their community. So I’m not an art librarian, I’m not a photo librarian, I’m not an archivist; those folks know their communities best, they know the publishers, they know the databases, they know licenses, they know the practices, often they know the materials, or what the questions are going to be asked about the materials. So they’re in the best position, and half of them have masters or PhD’s in these topics, so why not just layer on copyright expertise on top of all the expertise they already have, and they’ll be in the best position to answer that and that’s that frontline. The triage is the next level—you know—folks like you and I, that are there to kind of answer the harder ones, but the harder ones also serve as a methodology of teaching, and it seemed to work at Harvard well. And then I was invited to—you know, kind of the “Johnny Appleseed” of Copyright First Responders—go to other places in the United States. Now what was interesting was I didn’t foresee it working elsewhere other than in this school with—you know—most libraries. However, I just returned from the Pacific Northwest, where we did bootcamp-style Copyright First Responder sessions and the Orbis Cascade Alliance (which is a consortia group of libraries across multiple states in that region) won a grant to bring me out to do this. And so they founded the Copyright First Responders Pacific Northwest. They have a logo and everything, just like we have a logo and graduation and patches and all the fun stuff that comes along with completing this. They have set up a regional version of this, which is very exciting. And so, much like the Copyright First Responders Harvard, they have a tiered structure, they have a closed list serve in which they can talk about stuff and they can learn, but what’s really interesting about the difference between having a single school—a single school can have a policy, right, and so we can come up—you know—five years Copyright First Responders, we know where the good green lights are, we know what our community feels like. However, Orbis Cascade Alliance and the Copyright First Responders Pacific Northwest are all at separate institutions, so they’re sharing what they’re doing at their separate institutions and they may not be the same, but certainly that’s a great learning and valued experience and in that they’re working this particular topic—copyright and that they’re sharing. Oh, “here’s how we do our stickers on our printers. Here’s how we handle certain pages request. Here’s how our digitization,“ you know “search for the public domain.” Some are more like, “Oh, now we finally can talk about fair use in some capacity.” So they’ve all had gains and so far it’s going very well. So shout out to the Copyright First Responders Pacific Northwest, other schools, and consortia who have had interest. I did one here last year in New Orleans, they wanted to do a citywide copyright first responders, and I mean I’m actually here talking about that with people now that I’m back in town so that would be interesting because that was a collaboration of museums archives and libraries in New Orleans that needed the same help as everyone else. So I think the model works: decentralized expertise across a series of places, and I think the tear model helps, and I think the closed network of sharing information helps, and it all helps the learning. Again, this is what it’s all about—teaching, learning, and then making those communities myth-busters so to speak on—you know—they’re still out there—yeah, every place has the same questions—you know—thirty seconds, automatically fair use; thirty-one seconds, automatically infringement. Yeah, “where does that come from?” You know, I would try to track that myth, but that idea is that just some of those basic things and “have you talked about this recently?” You know, sometimes you still need the basics—the 101’s are as critical as anything, because that sets the tone for the more advanced questions. So again, this Copyright First Responders network, I believe is working so far and will continue to spread, so coming soon to a place near you, maybe.
Sara: You have—do you have like online repository too?
Kyle: So what.. we don’t yet, but because we have so many starting up in so many different regions, and people are talking, I am booking in 2019, already well enough to come and do this. Emily Kilcer, who was project coordinator at the O. S. C. where I work, and myself have written a “best practices to forming a copyright first responders group” up it’s very informal, but it’s just like stuff we’ve seen and run into. And now that I’ve done this regional one, I’ve gone back to edit, because of course I was assuming, “Oh, at a school only, or a place with multiple libraries in the district” but now I want to—you know—put in pointers for those that want to do it in a region. Most recently, the State of Rhode Island had been to a similar boot camp down there and wouldn’t it be interesting, we were talking, about having a statewide copyright first responders? And again, these are things I had not considered before and that’s why I think—I think the model works, because it’s adaptable—you know—everyone’s going to choose their own. So we’re hoping to release this best practices guide by the end of the summer and make a place where all this can live and people can cooperate and collaborate, maybe. Wouldn’t it be amazing if all of these regions and schools collaborate on a really big…some kind of mega-listserv or website? Now, it’s down the road a bit, but certainly I don’t think it can harm anyone. If anything, it could serve as a source of more education in our reach. As you know, we can never get enough, right? I think every time you and I go to a place, and we lecture, if it’s a small class or a large conference, there’s a gain for our community in that.
Sara: Well I’ve seen at least part of the Copyright First Responders program first hand. Kyle came to the University of Illinois and talked about fair use, and I couldn’t get the librarians stop raving about it. I said, “I’m here, let me talk next time!” They said, “We want Kyle back.”
Kyle: But, you know what, however you have saved me, because the data you pulled from that actually proves that I can teach people, because the curve went up, right? They actually learned.
Sara: Exactly. Yep. Everybody learned.
Kyle: Yes, yes.
Sara: ….and it was—and it was very empowering for people, so you know I highly recommend Kyle’s program. If anyone has questions, you can reach out to him. He’s a very friendly guy, he’s very busy (very, very busy).
Kyle: Not too busy though to talk the good stuff
Sara: Yes that’s right, that’s right. So, Kyle thank you so much for talking with me. I really always enjoy talking about copyright with you, of course, and I look forward to your projects now and in the future.
Kyle: Thanks so much.
Music credit: http://www.bensound.com/royalty-free-music