MediaWeek (Vol 5, N 20): Georgia State Opinion Round-Up

For those interested in how discussions are setting up around the Georgia State eReserves Case:

Kevin Smith at Duke (perhaps the first to write in detail about the opinion):

Overall there is good news for libraries in the decision issued late yesterday in the Georgia State University e-reserves copyright case.  Most of the extreme positions advocated by the plaintiff publishers were rejected, and Judge Evans found copyright infringement in only five excerpts from among the 99 specific reading that had been challenged in the case.
That means she found fair use, or, occasionally, some other justification, in 94 instances, or 95% of the time.
But that does not make this an easy decision for libraries to deal with.  Indeed, it poses a difficult challenge for everyone involved, it seems.  For the Judge, it was a monumental labor that took almost a year to complete.  She wrote 350 pages, working through a raft of legal arguments first and then painstakingly applying them to each of the challenged readings.  And for me, with a week’s vacation pending, I am trying to make sense of this tome before I leave, which is why I am writing this at four in the morning on a Saturday (please excuse typos!).

James Grimmelmann: Inside the Georgia State Opinion

Thus, the operational bottom line for universities is that it’s likely to be fair use to assign less than 10% 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. This third prong is almost never going to be something that professors or librarians can evaluate, so in practice, I expect to see fair-use e-reserves codes that treat under 10% as presumptively okay, and amounts over 10% but less than some ill-defined maximum as presumptively okay if it has been confirmed that a license to make digital copies of excerpts from the book is not available.
The most interesting issue open in the case is the scope of any possible injunction. Given that Georgia State won on sixty-nine out of seventy-four litigated claims, while the publishers won on only five, I expect that the any injunction will need to be rather narrow. But given how amenable the court’s proposed limits are to bright-line treatment, it is likely that the publishers will push to write them in to the injunction.
My bottom line on the case is that it’s mostly a win for Georgia State and mostly a loss for the publishers. The big winner is CCC. It gains leverage against universities for coursepack and e-reserve copying with a bright-line rule, and it gains leverage against publishers who will be under much more pressure to participate in its full panoply of licenses.

 ARL: GSU Fair Use Decision Recap and Implications (PDF) Hat tip Brantley

In addition to the statutory factors, courts are required to consider how a
proposed fair use serves or disserves the purpose of copyright, which is to
encourage the creation and dissemination of creative works. The judge’s
reasoning here is perhaps the most compelling and shows that she took into
account some key facts about the academic publishing market that are often
overlooked in these discussions. Based on testimony from GSU professors, the
judge finds that academic authors and editors are motivated by professional
reputation and achievement and the advancement of knowledge, not royalty
payments, and that any diminution in royalty payments due to unlicensed
course reserves would have no effect on their motivation to produce
scholarship.8 Indeed, because the authors of such works are also the primary
users of course reserve systems, they would experience a net benefit from fair
use in that context. The court emphasizes that publishers receive so little income
from licensing excerpts as a percentage of their overall business that the slight
diminution caused by allowing unlicensed posting to course reserves would
have no cognizable effect on their will or ability to publish new works.
Unfortunately, these additional considerations do not enter into the individual
determinations. Rather, the court finds that any uses that stay within her
framework will serve the purposes of copyright, and those that stray beyond it
will disserve them.

 In Some Leeway, Some Limits over at Inside Higher Ed:

While the legal analysis may take time, both publishers and academic librarians have reacted strongly throughout the case. Publishers argued hat their system of promoting scholarship can't lose copyright benefits. Judge Evans in her decision noted that most book (and permission) sales for student use are by large for-profit companies, not by nonprofit university presses. But the Association of American University Presses has backed the suit by Cambridge and Oxford, saying that university presses "depend upon the income due them to continue to publish the specialized scholarly books required to educate students and to advance university research."
Many librarians, meanwhile, have expressed shock that university presses would sue a university for using their works for teaching purposes. Barbara Fister, a librarian at Gustavus Adolphus College and an Inside Higher Ed blogger, tweeted Friday night: "It still boggles my mind that scholarly presses are suing scholars teaching works that were written to further knowledge."
The reserve readings at the crux of the dispute are chapters, essays or portions of books that are assigned by Georgia State professors to their undergraduate and graduate students. (While the readers are frequently referred to as "supplemental," they are generally required; "supplemental" refers to readings supplementing texts that the professors tell students to buy.) E-reserves are similar to the way an earlier generation of students might have gone to the library for print materials on reserve. The decision in this case notes a number of steps taken by Georgia State (such as password protection) to prevent students from simply distributing the electronic passages to others.

The Chronicle of Higher Ed: "Mostly favors Georgia State":

"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.

Publisher's Weekly: AAP Statement on the Opinion

At the same time, we are disappointed with aspects of the Court's decision.  Most importantly, the court failed to examine the copying activities at GSU in their full context.  Many faculty members have provided students with electronic anthologies of copyrighted course materials which are not different in kind from copyrighted print materials.

In addition, the court's analysis of fair use principles was legally incorrect in some places and its application of those principles mistaken.  As a result, instances of infringing activity were incorrectly held to constitute fair use. Publishers recognize that certain academic uses of copyrighted materials are fair use that should not require permission but we believe the court misapplied that doctrine in certain situations.

The Court’s ruling has important implications for the ongoing vitality of academic publishing as well as the educational mission of colleges and universities. Contrary to the findings of the Court, if institutions such as GSU are allowed to offer substantial amounts of copyrighted content for free, publishers cannot sustain the creation of works of scholarship. The resources available to educators will be fundamentally impaired.

 Ars Technica: Fair Use is Hard

So—crushing victory for Georgia State, whose professors can now dance gleefully through the ash of their foes in publishing? Not quite. After years of litigation, the case came down to 75 particular items that the publishers argued were infringing. Five unlicensed excerpts (from four different books) did exceed the amount allowed under factor three above. These books include The Sage Handbook of Qualitative Research in both its second and third editions, along with The Power Elite and the no-doubt-scintillating tome Utilization-Focused Evaluation (Third Edition).
While the university had issued a 2009 guide designed to help faculty know when they needed a license for excerpts, the judge found that the policy "did not limit copying in those instances to decidedly small excerpts as required by this Order. Nor did it proscribe the use of multiple chapters from the same book."
Still, copyright and fair use can be murky, and the judge found no bad faith on the school's part, concluding: "The truth is that fair use principles are notoriously difficult to apply."

 Inside Higher Ed With Some Updates

Update, 5/15: In a conference call with reporters, Rich, along with Tom Allen, the president of AAP, disputed the popular notion that the publishers had "lost" the lawsuit. Before the publishers brought the suit four years ago, Georgia State's standards for e-reserve copying were far more permissive. Only afterward, in anticipation of a court trial, did Georgia State tighten its e-reserves policies, Rich said. During the trial, Judge Evans said she would only consider the fair use merits of instances of alleged infringement that occurred during a specific period after Georgia State had overhauled its practices.
Therefore, the judge's ruling was based on legal parsing of examples "that nobody thought would be the focal point of this lawsuit when it was brought,” Rich said. “So for Georgia State to declare victory as to those kinds of works is a false trail.”
While the scorecard might not have favored the publishers, the lawsuit forced Georgia State to shore up its e-reserve practices and confirmed that publishers' copyright protections do indeed apply to e-reserves. And that, Rich said, is not small victory. The lawsuit "was never about drawing the line at this point or that point, but to address a system that basically snubbed its nose at copyright," he said. “At a very fundamental level, that issue has been affirmatively addressed."

My contribution: Georgia Opinion - I see opportunity

Judge Evans has plainly stated that if a publisher's chapter is readily and easily available and the permission is set at a "reasonable price" then the law comes down on the publisher's side.  She notes specifically, Copyright Clearance Center which can deliver a permissions fee to the user (faculty, librarian, etc.) via Rightslink and, although CCC does not hold the actual content, publishers will be motivated to create digital repositories at a disaggregated level.

Background to the Case:

Chronicle of Higher Ed: What's at Stake in the Georgia Case (2011):

A closely watched trial in federal court in Atlanta, Cambridge University Press et al. v. Patton et al., is pitting faculty, libraries, and publishers against one another in a case that could clarify the nature of copyright and define the meaning of fair use in the digital age. Under copyright law, the doctrine of fair use allows some reproduction of copyrighted material, with a classroom exemption permitting an unspecified amount to be reproduced for educational purposes.
At issue before the court is the practice of putting class readings on electronic reserve (and, by extension, on faculty Web sites). Cambridge, Oxford University Press, and SAGE Publications, with support from the Association of American Publishers and the Copyright Clearance Center, are suing four administrators at Georgia State University. But the publishers more broadly allege that the university (which, under "state sovereign immunity," cannot be prosecuted in federal court) has enabled its staff and students to claim what amounts to a blanket exemption to copyright law through an overly lenient definition of the classroom exemption. The plaintiffs are asking for an injunction to stop university personnel from making material available on e-reserve without paying licensing fees. A decision is expected in several weeks. The Chronicle asked experts in scholarly communications what the case may mean for the future:

 Library Journal (2010):

According to a ruling on October 1, the closely watched Georgia State University (GSU) ereserves lawsuit will come down to whether the named defendants participated in the specific act of "contributory infringement," as two other original accusations were removed from the case.

This narrows the scope of the charges lodged by the publisher plaintiffs—Oxford University Press, Cambridge University Press, and SAGE Publications—and has Fair Use advocates cautiously optimistic as the case moves closer to trial.

In a blog post, library copyright watchdog and Duke Scholarly Communications Officer Kevin Smith wrote that he was "surprised at how favorable the ruling issued yesterday is to Georgia State; even though the Judge clearly expects to go to trial, there is a lot in her ruling to give hope and comfort to the academic community."

Barring a narrow settlement, the case could have a broad effect on academic library practice. If GSU's current policies are affirmed, libraries nationwide with similar digital reserves policies will be reassured if not emboldened. Should the plaintiffs prevail, however, there is likely to be a considerable chill on Fair Use deliberations as libraries reconsider the digital access they grant to copyrighted materials.

Two levels of infringement tossed out
Judge Orina Evans of Federal District Court in Atlanta ruled against all of the plaintiffs' motions for summary judgment, and granted two of the defendants' three counter-motions.

This ruling essentially holds there to be insufficient evidence to show that the named defendants (GSU's president Mark Becker, provost, associate provost for technology, and dean of libraries, Charlene Hurt) committed any acts of infringement, thus ruling out a charge of "direct infringement."

Likewise, Judge Evans similarly determined that there was no evidence of any profit directly from infringement committed by librarians under their supervision, excluding "vicarious infringement." 

Georgia On My Mind: Fair Use, Digital Availability & Reasonable Pricing

In April 2008, three publishers Oxford University Press, Cambridge University Press and Sage, filed suit against Georgia State University (GSU) for copyright infringement.  The Publishers charged that university officials had facilitated and encouraged the posting of the publishers' works on university websites and, consequently, made this copyright material available for students without compensation to the publisher.  While only three publishers were part of the suit, the case has been closely watched by both sides in the case: The three publishers being generally representative of all academic and scholarly publishers and GSU as representative of educational institutions particularly academic libraries.  Suing your customers is a very unsavory practice and generally both frowned on and generally only taken as a last resort.  The publishers felt that this case represented a slippery slope in the expansion of the application "fair use" within academia that could fully undermine their own business models and was thus worth fighting despite the potential for negative fall-out.

The case as adjudicated is victory for GSU although there may be some significant caveats which will become be even more important as the publishing business accelerates towards more electronic availability and delivery.  Firstly, however this is how Judge Evans summed up the case (Copy at InfoDocket):

Of the 99 alleged infringements that Plaintiffs maintained at the start of trial, only 75 were submitted for post-trial findings of fact and conclusions of law. This Order concludes that the unlicensed use of five excerpts (of four different books) infringed Plaintiffs’ copyrights. The question now is whether Georgia State's 2009 Copyright Policy caused those infringements. The Court finds that it did, in that the policy did not limit copying in those instances to decidedly small excerpts as required by this Order. Nor did it proscribe the use of multiple chapters from the same book.  Also, the fair use policy did not provide sufficient guidance in determining the “actual or potential effect on the market or the value of the copyrighted work,” a task which would likely be futile for prospective determinations (in advance of litigation). The only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available). The Court does believe that Defendants, in adopting the 2009 policy, tried to comply with the Copyright Act. The truth is that fair use principles are notoriously difficult to apply. Nonetheless, in the final analysis Defendants' intent is not relevant to a determination whether infringements occurred.

The publishers only proved five of the 99 infringements and will be very disappointed by this result.  Further, their financial claims may be marginalized later by the Judge; in which case, they are not likely to gain any significant financial 'reward' for these five infringements.  (Who would pay in any case is also a question since the Judge affirmed sovereign immunity but that's above my pay grade).

In her explanation, Judge Evans did present some important qualifications in her interpretation (based on the Campbell case which defined four criteria) of the fair use determination.

The most interesting interpretations to me were the following (pages 87-89): Firstly, on the amount of content that could be used under fair use, the Judge stated the following:

Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three. The pages are counted as previously set forth in this Order. In practical effect, this will allow copying of about one chapter or its equivalent. Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three.

That suggests to me that publishers will be encouraged to disaggregate their content into chunks so that each chapter stands independently.  Hard to do in print, this is entirely possible electronically (as part of the publishers digital strategy).  Which brings me to the second item of interest in the case:

Unpaid use of a decidedly small excerpt (as defined under factor three) in itself will not cause harm to the potential market for the copyrighted book. That is because a decidedly small excerpt does not substitute for the book. However, where permissions are readily available from CCC or the publisher for a copy of a small excerpt of a copyrighted book, at a reasonable price, and in a convenient format (in this case, permissions for digital excerpts), and permissions are not paid, factor four weighs heavily in Plaintiffs' favor. Factor four weighs in Defendants' favor when such permissions are not readily available.

Judge Evans has plainly stated that if a publisher's chapter is readily and easily available and the permission is set at a "reasonable price" then the law comes down on the publisher's side.  She notes specifically, Copyright Clearance Center which can deliver a permissions fee to the user (faculty, librarian, etc.) via Rightslink and, although CCC does not hold the actual content, publishers will be motivated to create digital repositories at a disaggregated level.

Anything connected with content and digital continues to move apace and who knows what the practical impact of this ruling will be as more and more content is digitally available and traditional frameworks around which content is organized begin to erode. The traditional monograph and textbook construct will dissipate and this ruling might seem to give that transition impetus.

CCC has been trying to move institutions towards campus wide licenses and this business model has proceeded fittingly over the past three or four years.  I suspect this program will become much more interesting to many more administrators given this ruling.  In Canada, Access Copyright has attempted to unilaterally apply the all-in-model for schools there but has faced tough opposition over the pricing structure.  Some schools have been asked to pay several multiples of the amounts they were paying under the old pay-as-you-go model.  As the kinks are worked out, Access Canada is likely to sign up most of the schools in Canada to this program. The UK has had the universal license program from many years.

There's no doubt the application of fair use will continue to generate friction between content owners and (in this case) educators and librarians but then technology continues to advance as well making all of this content both accessible and trackable.  Publishers might be able to live with 10% fair use if they can track and monitor the users but to do that they will probably have to universally participate in agencies like CCC and Access Copyright.