How much copyrighted material can professors make available to students in online course reserves before they exceed the boundaries of educational fair use? That’s the essential question at the heart of a long-running copyright-infringement lawsuit that has pitted three academic publishers against Georgia State University.
The answer matters not just to the parties to the case, Cambridge University Press et al. v. Carl V. Patton et al., but publishers, librarians, and professors at many other institutions. It’s already been more than six years since Cambridge, Oxford University Press, and SAGE Publications sued Georgia State for copyright infringement. And the latest round of legal action guarantees that the case will drag on a while longer before it produces a reliably precedent-setting answer, if it does.
On Friday, in a setback for the university, a federal appeals court reversed a May 2012 ruling that mostly favored Georgia State. In a 129-page decision, a unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit sent the case back to the U.S. District Court in Atlanta for further consideration. It also vacated Judge Orinda D. Evans’s decision to award injunctive relief and legal costs and fees to the university.
Judge Evans found that Georgia State had violated copyright with the online course reserves, known as “e-reserves,” in only five of 99 instances alleged by the plaintiffs. The publishers appealed that ruling.
In response, the appeals-court judges took a close look at the reasoning behind Judge Evans’s conclusions and how she had applied the four factors commonly used to gauge fair use. (Those factors are the nature of the use, the nature of the work being used, how much of it is used, and whether that use might affect the market for the work.)
The appellate panel concluded that the lower court’s decision had relied on “legally flawed methodology” in weighing all four factors equally, and that it had misapplied two of them. (One of the three appeals-court judges, C. Roger Vinson, issued a separate but concurring opinion in which he took issue with his colleagues’ application of the fair-use factors but agreed with them that the lower court’s decision should be reversed.)
The judges also didn’t like the baseline Judge Evans had set for how much content could be safely posted without violating copyright: 10 percent or one chapter of a copyrighted work. They wrote: “The District Court should have analyzed each instance of alleged copying individually, considering the quantity and quality of the material taken—whether the material taken constituted the heart of the work—and whether that taking was excessive in light of the educational purpose of the use” and whether it might eat into the potential market for that work.
A Conciliatory Tone
Although the publishers have the most reason to be happy about Friday’s ruling, it contains some good news for the other side. The appeals court emphasized that the educational use of copyrighted material “provides a broader public benefit” that can favor a fair-use defense, even if the use isn’t “transformative” (a parody, say). And the decision dismisses what are known as the Classroom Guidelines, which date to 1976, along with cases from the age of photocopied coursepacks, as binding authorities in a digital-era case like this one. (For more on the pros and cons of the decision and why it’s not necessarily bad news for educational fair use, see this assessment by Nancy Sims, the copyright-program librarian at the University of Minnesota Libraries.)
Georgia State has not yet responded publicly to Friday’s ruling.
The Association of American Publishers posted a short statement on its website, saying it was pleased with the decision. “AAP believes that today’s decision will help to protect the intellectual-property rights of authors and publishers who are providing students with high-quality educational materials,” it said. The association, along with the Copyright Clearance Center, a rights-permission service, helped bankroll the publishers’ legal action.
Oxford University Press took a more conciliatory tone in a statement it posted online. (The plaintiffs have come under fire from academic librarians in particular for suing some of their best customers.) “The three publishers involved reluctantly undertook this action to help clarify important questions of copyright in a digital world,” the Oxford press said. “We welcome today’s decision as it will help to protect the intellectual-property rights of authors and publishers who produce high-quality educational materials on which colleges and universities depend.”
The statement noted that the publishing house had not sought damages or tried to extend copyright protections through the case, “merely wanting to bring Georgia State’s practices in line with those at other universities.” It also said that Oxford would “continue to work with the scholarly community, including libraries, authors, editors, and academic societies, to develop copyright policies and practices—together with industry bodies such as the Association of American Publishers, and with collective licensing bodies—that support both effective dissemination and production of scholarly knowledge.”
Niko Pfund, the president and publisher of Oxford University Press, commented briefly on the ruling via email. “While we are relieved to see our longstanding contention—that e-reserves enlisted as a direct substitute for print coursepacks do not constitute a transformational use—acknowledged, our primary focus going forward will be on partnering with our library colleagues, authors, and teachers to agree on workable principles for all involved,” Mr. Pfund said.
