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At Long Last…a Decision in Georgia

Four years since the filing, one year since the trial, and 350 pages of opinion later…we have an opinion in the closely watched copyright infringement action against Georgia State University.  The case pitted prolific academic publishers Sage, Cambridge and Oxford against the GSU provost, Library Dean and others, with the publishers claiming that the policy and practice of GSU’s Library allowed faculty to post, in violation of the publishers’ copyrights, scans of book chapters in the University’s e-reserve and course management systems.  In response, GSU contended that its actions fell within the Fair Use provision of the Copyright Act, which the publishers contended that the postings, in the absence of permission or payment of license fees, far exceeded the bounds of fair use, which they argued were defined by outdated guidelines.  In the end, the judge found largely in favor of GSU, and in doing so, she crafted a fair use framework (although for the time-being is only legally binding upon persons living in the Northern District of Georgia) that libraries and publishers alike will be analyzing and implementing in the months to come.

The Fair Use Framework of the GSU Case

Under §107 of the Copyright Act, a use of a copyrighted work without permission of the copyright holder is permissible when such use is for the purposes of teaching, research, commentary, news reporting, parody, or criticism, and the balance of four enumerated factors weighs in favor of a finding of fair use.  Those four factors as set forth in the statute are: (1) the purpose and nature of the use, (2) the nature of the copyrighted work being used, (3) the quantity of the copyright work being used, and (4) the effect of the use upon the potential market. The application of these four factors to the posting of copyrighted works to electronic reserves systems has long been the subject of scholarly debate; however, this case is the first time that a court has undertaken to apply the fair use factors to such use. The judge’s application of the fair use factors in the context of e-reserves can be summarized as follows:

Purpose and Nature of Use – Because a college or university’s library is a non-profit and educational user, the court found that this factor weighed heavily in favor of a finding of fair use.

Nature of the Copyrighted Work: Because the works at issue in the case were all scholarly, non-fiction works (and many of them reference-type handbooks), the court found that this factor also weighed in favor of a finding fair use.

Quantity of the Copyrighted Work Being Used: Most of the excerpts posted in GSU’s course reserves were 10% or less of the book. The court held that this factor weighs in favor of fair use where no more than 10% of a work with less than 10 chapters or no more than one single chapter in works of more than 10 chapters is used.  In amounts greater than this, this factor weighs in favor of the copyright holders. The court also reiterated that where the portion used represents the “heart of the work,” the balance tips in favor of the copyright holder.

Effect Upon the Potential Market for the Work – Where there is a reasonably priced and readily available license for a digital excerpt of the copyrighted work, this factor tips in favor of the copyright holder. This factor also weighs in favor of the copyright holder where the amount used is so great that it substitutes purchase of the entire work.

Answers, Yes, but Also More Questions

Through her careful reasoning and explanation, the judge in the GSU case answered many questions that have been pondered by copyright scholars and academic library practitioners. In particular, she held:

– The posting of copyrighted works in an electronic reserve or course management system is not analogous to the production of print course packs by a copy shop or other commercial entity.  Thus, many points in the Kinkos case are not applicable to e-reserves.

– The posting of copyrighted materials in an e-reserve system is not a transformative use.  In recent years, a finding of transformativeness has been key to deciding fair use cases.

– The 1976 Classroom Photocopying Guidelines are too restrictive and thus inconsistent with fair use. Further, the judge expressly rejected the “subsequent semester” rule that is an outgrowth of the Classroom Guidelines. Thus, use of the same excerpts for a course from one semester to the next does not mitigate against a finding of fair use.

– No or minimal use can mean no infringement. Where items posted to course reserves are never accessed by students, there is no infringement.

– When calculating the number of pages in a work (for purposes of determining what constitutes 10%), the entire work is counted, including the table of contents, foreword, and index pages.

However, the decision also left scholars and librarians with more questions to ponder:

– What about journal articles, images, videos, etc?  The decision in GSU only dealt with monographs; however, many faculty utilize these other categories of works in their courses and request their institution’s library to post these materials in the course reserve system.

– What constitutes a “readily available and reasonably priced” license? And, if the copyright holder does not have a license or permission system available for the work or its excerpts, does this mean its fair use to use it anyway? In the wake of this decision, more publishers will likely either contract with Copyright Clearance Center or invest in devising their own license and permission systems. Does this mean libraries will end up paying more for less?

It will be interesting to see what answers folks on all sides off these issues will propose in the weeks to come and what the next moves of the publishers and their litigation funders will be in response to the judgment.

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The Devil Went Down to Georgia

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.

March Madness

March Madness applies not only to the basketball court – but to the court of law as well, as we have seen this month. It has been nearly a month since I last wrote a post – and much has happened since then with respect to copyright law. I apologize for my tardiness in giving these significant events due attention. But my own month of March has been marked by “madness” – including three conference/workshop presentations and, more significantly, preparations for a move across country for a new job as scholarly communications librarian at the University of Florida.

So let’s review what has happened during this very busy March:

Righthaven Lawsuits:  Fair Use – 1, Trolls – 0

Righthaven LLC, organized in 2010 upon acceptance of assignment of copyright ownership in the content of the Las Vegas Review-Journal and other media outlets, has filed over 250 lawsuits against bloggers, web sites, journalists and others for copyright infringement. Prospective defendants are identified through a tactic referred to as “trolling,” whereby Righthaven allegedly searches the Internet for use of content and then seeks assignment of copyright and sues for infringement. Many of the lawsuits stem from the copying of a single image or the quoting of a sentence or two of copyrighted content.  However, in one lawsuit, Righthaven claimed a non-profit immigrant rights organization committed infringement when it republished the full text of a Review-Journal article on immigration. That lawsuit came to a conclusion this month after a trial judge ruled that the use by the NPO was in fact a fair use. Upon reviewing the four factors of fair use, the judge determined that there was no effect upon the market (Factor Four). Righthaven did not assert any effect upon the Review-Journal’s ability to report the news; rather, the copyright was relied upon solely as a basis for the lawsuit. Further, there was essentially no overlap between the NPO’s audience and that of the newspaper.  Finally, the use of the article was for informational purposes and fit squarely within the NPO’s educational mission (Factor One). For a complete history of the Righthaven lawsuits, visit http://www.righthavenlawsuits.com/.

Full Court Press: Second Motion to Dismiss Filed in AIME v. UCLA

Following the filing of UCLA’s motion to dismiss in the copyright infringement action against it in January, plaintiff AIME amended its complaint. The amended complaint alleges additional facts in an attempt to support the initial and added claims against a now expanded list of defendants. A second motion to dismiss was filed by the UCLA defendants this month. In this motion, much like the first, UCLA renews its claim to immunity under the Eleventh Amendment. UCLA challenges AIME’s contention in the amended complaint that immunity was waived by the University’s assent to the license agreement. And, as previously discussed here, the contract vs. copyright claims remain to be at issue in the amended complaint and follow-up motion to dismiss. This case continues to be one to watch.

Review by the Ref: Certiorari Granted in Golan v. Holder

In 1994, in an attempt to bring federal law into compliance with the Berne Convention, Congress enacted legislation, under authority of the “Copyright Clause,” extending copyright protection to thousands of foreign works that were still considered copyrighted in their countries of origin) but had long been considered part of the U.S. public domain.  Many creative works, such as symphonies and films, that had been treated for decades as being in the public domain and as such had been performed, adapted, distributed and restored, were now protected by copyright. In an action brought by representatives of composers and film distributors, it was alleged that this retroactive extension of copyright protection to works previously treated as out-of-copyright was not only not within Congress’s power under the Copyright Clause but was also a violation of the petitioners’ First Amendment rights. The claims were rejected by the 10th Circuit, but this month, despite the government’s plea to refrain, the Supreme Court granted cert to hear the case. The outcome of this case has significant copyright implications because, as the petition for review argued, “if Congress is free to restore material from the public domain at will, then the public’s federal right to copy and to use public domain material this Court has recognized may evaporate at any time.”

Slam Dunk: Rejection of the Google Books Settlement Agreement

In the several days since, and surely in the days and weeks to come, librarians, attorneys, authors, and scholars will be debating the probable effects of the court’s sweeping rejection of the settlement agreement initially drafted in the Google Books litigation three years ago. Following months of wrangling and amending, the latest iteration of the agreement was rejected in totality last week by the federal court presiding over the case. In his opinion, Judge Denny Chin rejected the settlement agreement primarily on the ground that the major issues, namely the status of orphan works and the rights of foreign authors and publishers, were ones that were better resolved by Congress than a federal court. In particular, the orphan works problem is so amorphous that it cannot be adequately served by a settlement agreement between a possibly inadequate class of plaintiffs and a private entity. Moving forward, of concern to universities that had been participants in the Google Books mass digitization project is potential liability. While I do not foresee a rash of lawsuits or outrage for this noble effort to make works searchable and accessible by the public, it will be very interesting to see what develops in the weeks ahead.

Jump Ball: Trial Date Set in Georgia State University E-Reserves Case

In late September 2010, the judge in the copyright infringement action filed against GSU considered a motion for summary judgment filed by the University and the publishers who filed the action. In her ruling on that motion, she permitted the case to go forward on the issue of contributory infringement. Last week, the judge denied the University motion to dismiss the remaining claim, thereby setting the matter for trial, which is to commence May 16th. The hope is that this case will finally resolve some contentious issues regarding the bounds of fair use, particularly in this context of educational use of copyrighted materials online in electronic reserve or course management systems.

Georgia (State University) on My Mind

Last month, a federal district court judge ruled on the cross motions for summary judgment filed in the lawsuit against Georgia State University for copyright infringement. Unexpectedly, but thankfully, the ruling on those motions has opened the door to an actual trial being conducted. The hope of academic institutions and academic publishers alike is that some clarification will be offered as to the boundaries of fair use as pertains to electronic reserves.

To bring the unaware up to speed, a brief review of the litigation follows. In April 2008, three major academic publishers (Cambridge University Press, SAGE Publications, and Oxford University Press) filed suit against various officials, including the provost and library dean, of the Georgia State University system alleging copyright infringement. The complaint accused the University of engaging in “pervasive, flagrant and ongoing unauthorized distribution of copyrighted materials” via the course management system Blackboard™, departmental web pages, and hyperlinked online syllabi. The complaint alleged, specifically, that at the time of filing the University had stored on its servers 6700 works that had been used in over 600 courses and that these works had been repeatedly and systematically made available to faculty, students and staff for downloading, viewing, and printing without first obtaining copyright clearance from the copyright holders. The publishers do not seek monetary damages but rather seek to enjoin the University (and ostensibly other educational entities) from further engaging in this type of electronic reserves practice.

In the months that followed, the University dramatically revised its copyright policy. Both sides also filed motions for summary judgment, accompanied by lengthy briefs. Now, some thirty months after the suit was first filed, the trial judge ruled on those motions. The motions required the trial judge to review the three claims of liability presented in the compliant: (1) direct copyright infringement, (2) contributory copyright infringement, and (3) vicarious copyright infringement liability. The direct liability claim stemmed from the publishers’ contention that even if the individually named University officials did not personally commit infringement, the employees of the University acted in the scope of their employment when they posted materials online and that their infringing conduct could thus be imputed to the University (“doctrine of respondeat superior”). The trial judge dismissed this claim in favor of the University on the ground that the doctrine of respondeat superior could not legally support a claim of direct liability.

The vicarious liability claim arose from the publishers’ argument that the University committed infringement by facilitating and encouraging faculty, students and staff to view, download, print, and otherwise distribute materials that had been posted online in the e-reserves system in violation of the publishers’ copyrights.  The trial judge again ruled in favor of the University on this issue. In order for the University to be vicariously liable, it had to be shown that the University profited financially from the infringing use of copyrighted works by its faculty, students, and staff. The publishers’ argument that the University’s purchase and promotion of a course management system and other current technologies, which have many non-infringing uses, attracted and retained students was insufficient to demonstrate that the University realized a financial profit through distribution of copyrighted works.

As to the claim of contributory infringement, the trial judge denied both parties’ motions for summary judgment, and this remaining issue will thus be resolved at trial. Because the University revised its copyright policy after suit was filed, the judge directed that the publishers must demonstrate at trial that infringement is likely to occur under the revised policy. Conduct under the prior policy is irrelevant because, under the doctrine of sovereign immunity, the University is liable only for future, or continuous and ongoing, infringement. Further, and significantly, the judge noted that the policy as currently written does not induce or encourage infringement. As such, the publishers have the burden of showing that the policy is implemented in a way that facilitates and encourages ongoing and continuous infringement.

The good news for those in the academic community is the revised policy adopted by Georgia State University resembles those copyright policies adopted at numerous institutions across the country. Further, by placing this heavy burden upon the publishers, the trial judge has invited an examination of various scenarios played out in libraries and academic institutions every day. The hope is that this examination and review of the examples sure to be brought before the trial court will clarify and define the bounds of fair use in a way that benefits educational users of copyrighted materials.

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