Three years in the making, the trial against Georgia State University (GSU) for their e-reserves practices begins tomorrow. The course for trial was set at the end of September when the federal judge presiding over the case ruled on the motions for summary judgment filed by the publishers and GSU officials, allowing the case to go forward solely on the claim of contributory infringement. (For a detailed explanation of those motions please read “Georgia (State University) on My Mind.”) However, in December 2010, the court granted the publishers’ motion for reconsideration and permitted them to proceed on the claim of direct infringement, now understood and correctly labeled as a claim of “indirect infringement.”
In the weeks and days leading up to trial, both sides filed the usual and customary motions concerning evidence and other pre-trial matters. But the most noteworthy, and somewhat nerve-wracking, pre-trial filing came from the publishers in the form of a proposed order to be signed by the judge in the event they win their case. The publishers do not seek monetary damages as the remedy for the alleged infringement; rather, they seek to enjoin GSU (and inevitably all academic libraries, college students, and faculty) from continuing to access copyrighted materials through secure digital means without permission and payment of royalties. The proposed injunction filed by the publishers would prohibit all persons affiliated with GSU, including faculty and students, from reproducing, transmitting, downloading, etc. copyrighted materials without permission or in excess of the Guidelines for Educational Fair Use that accompanied the 1976 adoption of the Copyright Act. Nowhere in the proposed injunction is there any mention of fair use as codified at §107 of the Copyright Act.
The publishers’ insistence of limiting GSU, including its students and faculty, to outdated and overly-strict guidelines is abhorrent. While I do appreciate the guidance and wisdom of the authors of the 1976 Guidelines and their exposition on the concepts of “brevity” and “spontaneity,” I do not believe that guidelines drafted at a time when only print existed and current digital modes of delivering educational materials were not even imagined should be levied against an institution as the absolute maximums allowed. To do so would completely obliterate the balancing test prescribed by the terms of § 107. As an academic librarian, I appreciate the ease and efficiency offered by adherence to numeric guidelines. However, librarians should strongly advocate against imposition of such strict maximums and lobby loudly for fair use.
Further, I do agree that certain versions of the “fair use checklist” often utilized by academics tend to liberally lean toward a finding of fair use; however, the checklist problem should not be solved through such a drastic measure as removal of fair use as a concept and consideration and adoption of very minimum page and word limits.
What the Kinko’s case did to the use of printed coursepacks, the outcome of the GSU case may very well do to e-reserve practices employed at most institutions of higher education. However, the outcome may not be the simple discontinuation of a certain practice or a slight modification of process; rather, fair use landscape may very well be blighted.