Jennifer Granick, Executive Director of the Stanford Center for Internet and Society, had a recent article in Wired entitled "Evolutionists Are Wrong!" The lead in the story is this:
"Where are the copyright liberals when right-wing conservatives need us?
Last week, the National Academy of Sciences, or NAS, joined with the National Science Teachers Association, or NSTA, to tell the Kansas State Board of Education that it would not grant the state copyright permission to incorporate its science education standards manuals into the state's public school science curriculum because Kansas plans to teach students that 'intelligent design' is a viable alternative theory to evolution. Kansas is scrambling to rewrite its proposal to win over the NAS and NSTA."
Ms. Granick is apparently no fan of intelligent design theory, but expresses concern that the NAS and NSTA "are using their copyrights to bring wayward Kansas educators into line." She lumps them in with Disney movie trailer licenses that are purported to prevent licensees from criticizing Disney or the entertainment industry; Diebold; Cisco Systems; Scientologists; and NBC as further examples of copyright misuse. She also refers to Judge Posner's suggestion that the doctrine of copyright misuse might be applied in some cases where copyright owners are trying to suppress criticism.
I was counsel for the successful appellant in the case where Judge Posner first raised that possibility, Ty, Inc. v. Publications International, Ltd., and obviously agree with the importance of such a defense. But under what conditions? In the Kansas case, in all of the cases mentioned by Ms. Granick? Should the Kansas case be, as she asserts, "an uncomfortable issue for copyright scholars, who, if they are anything like biologists, presumably disagree with intelligent design?" Should we "have to call the game fairly," as she further suggests? Or, even more boldly, is it "hypocritical to stand by and watch as others use [copyright] to bring the Kansas Board of Education into the scientific fold?" as she asserts?
I certainly agree we should call the game as we see it and try to religiously, but I don't see how that leads to what Ms. Granick apparently wishes, a kind of copyright version of ACLU support for Nazis marching through Jewish neighborhoods. First off, Ms. Granick doesn't spend any time addressing the contours of a misuse defense. Judge Posner and I have jointly written about that issue, and without speaking for him, I don't believe it bears any resemblance to the First Amendment or to what Ms. Granick has in mind in the Kansas case. (Some of the other examples she gives are, however, excellent targets for the defense).
The misuse defense spoken of in the Ty case is intended to prevent copyright owners from using copyright litigation as a way to suppress criticism. In Ty, the allegation was that Ty insisted on a license to make photographs of its three-dimensional dolls. If you wanted to publish a guidebook to Beanie Babies you need to use photos, hence you allegedly needed a license from Ty. The allegation was that the license was a stalking horse for a license provision that gave Ty control over the written content in the guide.
But the Kansas example is very different. The NAS and NSTA are not trying to suppress criticism about themselves or even trying to suppress criticism about their materials. Instead, as I understand it, they are effectively saying, "what you are doing is not science, it is religion. You can't put our material in a book on religion and pretend that the book is about science; its not." I have no problem with that from a copyright standpoint or any other standpoint for that matter. There is nothing stopping Kansas, as I understand it, from publishing two manuals, their own which they can call whatever they want, and a second manual with the NSTA and NAS material used in a real science class. That at least, is what I derive from Ms. Garnick's use of the word "incorporate," meaning the copyright owners' complaint was over their material being bound in a single manual with Kansas' intelligent design material.
If this is right, I would have thought real First Amendment folks would defend NSTA and NAS from being forced to speak in a way they find offensive; there is, after all, a First Amendment right to remain silent. But that aside, I fail to see there is any copyright issue at all, much less one involving fair use. Let Kansas be Kansas if it wants, but it has no right to force NSTA and NAS to share its view by association; that too is a First Amendment right.
You check out Ms. Granick's own blog with comments on the issue here.