• September 1, 2014

Long-Awaited Ruling in Copyright Case Mostly Favors Georgia State U.

A federal judge in Atlanta has handed down a long-awaited ruling in a lawsuit brought by three scholarly publishers against Georgia State University over its use of copyrighted material in electronic reserves. The ruling, delivered on Friday, looks mostly like a victory for the university, finding that only five of 99 alleged copyright infringements did in fact violate the plaintiffs' copyrights.

"My initial reaction is, honestly, what a crushing defeat for the publishers," said Brandon C. Butler, the director of public-policy initiatives for the Association of Research Libraries. Given how few claims the publishers won, "there's a 95 percent success rate for the GSU fair-use policy." The ruling suggests that Georgia State is "getting it almost entirely right" with its current copyright policy, he said.

The three publishers brought their suit in April 2008. The Association of American Publishers and the Copyright Clearance Center, which licenses content to universities on behalf of publishers, helped foot the bill.

In their complaint, the plaintiffs alleged that Georgia State went well beyond fair use in how much copyrighted material it allowed faculty members to post online for students. The university denied the claim and overhauled its e-reserves policy in late 2008, after the lawsuit was brought. As a state institution, it also invoked sovereign immunity, which meant that the publishers would have a harder time seeking damages.

Publishers, librarians, and fair-use advocates have been anticipating a ruling from Judge Orinda Evans of the U.S. District Court in Atlanta for months. The length of the ruling—350 pages, with a detailed examination of individual use cases—helps explain the long delay.

"This is somebody trying very hard to do a very good job with a very complicated case," said Nancy Sims, copyright program librarian at the University of Minnesota, who's been watching the case closely. "Once you see the detail, you understand the delay." Ms. Sims described the ruling as "really even-handed," with "some good and some bad" news for the cause of educational fair use.

Judge Evans rejected many of the individual claims brought by the three plaintiffs—Cambridge University Press, Oxford University Press, and SAGE Publications—concluding that the publishers had not adequately proved their copyright stake in the material. She dismissed the plaintiffs' argument that Georgia State had exceeded the guidelines for classroom copying set out by Congress in 1976, long before e-reserves. And she examined publishers' balance sheets and concluded that they had not lost significant amounts of revenue because of the alleged infringements.

In weighing whether Georgia State went too far in its use of unlicensed e-reserves, the judge considered four factors laid out in Section 107 of the U.S. Copyright Act. Those factors are: 1. whether the use is for commercial or nonprofit educational purposes; 2. the nature of the copyrighted work; 3. how much of the whole work is used and how substantive that portion is; and 4. what effect the use in question has on the "potential market for or value of the copyrighted work."

In the judge's analysis, factors Nos. 1 and 2 "favor the defendant every time," Mr. Butler said. He noted that factor No. 4 played somewhat better for the publishers. "She basically said, If there's a licensing market, that favors the rights holder," he said. If the amount of copyrighted material used is small enough, though—a question covered by factor No. 3— "then the judge says, essentially, this is not affecting the market for licensing," he said.

Ms. Sims said that the judge took the educational purpose of each use seriously and did not focus just on market considerations. "That was one of the contentions here—that if you can pay for it, you should be," she said. "And that's clearly not what the court is saying."

One part of the ruling could be problematic for librarians and others trying to work out fair-use policies in academe. Judge Evans proposed a 10-percent rule to guide decisions about what constitutes fair use in an educational setting. For books without chapters or with fewer than 10 chapters, "unpaid copying of no more than 10 percent of the pages in the book is permissible under factor three," she wrote in her ruling. For books with 10 or more chapters, "permissible fair use" would be copying up to one chapter or its equivalent.

Mr. Butler, Ms. Sims, and other observers said those standards could be a problem for libraries. "This is a less flexible standard than many libraries would like, I think, and it seems too rigid to be a good fit with the overall structure of fair use," wrote Kevin Smith, scholarly communications officer at Duke University, on the blog Scholarly Communications @ Duke. From a library perspective, Mr. Smith saw more good than bad in the decision. "In general I expect librarians to be happy about the outcome of this case. It suggests that suing libraries is an unprofitable adventure, when 95 percent of the challenged uses were upheld," he wrote. "But there will also be a good deal of hand-wringing about the uncertainties that the judge has left us with, the places where we need information we cannot reasonably obtain, and the mechanical application of a strict percentage."

It will take time to sort out the uncertainties. The plaintiffs must now declare what relief they'll seek for the five infringements the judge found. After that, they may well mount an appeal. First they have to figure out the broader implications of Friday's decision.

"The Association of American Publishers, speaking on behalf of the publisher plaintiffs, said they are studying the ruling and will provide comment once they've completed their analysis of it," Andi Sporkin, the association's vice president of communications, said in a statement e-mailed to The Chronicle.

Representatives of Georgia State University did not respond over the weekend to requests for comment.

Legal experts and library advocates will be studying the ruling closely to get a better sense of what precedent or example it might set for other universities and their fair-use policies. On Sunday, James Grimmelmann, a professor of law at New York Law School, posted a detailed analysis on his blog, The Laboratorium. "The operational bottom line for universities is that it's likely to be fair use to assign less than 10 percent of a book, to assign larger portions of a book that is not available for digital licensing, or to assign larger portions of a book that is available for digital licensing but doesn't make significant revenues through licensing," Mr. Grimmelmann wrote.

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