Publishers Win On Only Five Claims In Copyright Case Against Georgia State

McGruber writes with news of a ruling in a copyright case brought against Georgia State by several publishers over the university's electronic reserve system: "The Atlanta Journal Constitution is reporting that a federal judge has ruled in favor of Georgia State University on 69 of 74 copyright claims filed by Cambridge University Press, Oxford University Press, and SAGE Publications. In a 350-page ruling, Senior U.S. District Judge Orinda Evans found that 'fair use protected a Georgia State University professor's decision to allow students to access an excerpt online through the university's Electronic Reserves System.' While the 69 of the 74 claims were rejected, the judge also found that five violations did occur 'when the publisher lost money because a professor had provided free electronic access to selected chapters in textbooks.' SAGE Publications prevailed on four of these five claims, while Oxford University Press won the fifth claim. Cambridge University Press lost all its claims." From Inside Higher Ed: "And the judge also rejected the publishers' ideas about how to regulate e-reserves — ideas that many academic librarians said would be unworkable. At the same time, however, the judge imposed a strict limit of 10 percent on the volume of a book that may be covered by fair use (a proportion that would cover much, but by no means all, of what was in e-reserves at Georgia State, and probably at many other colleges). And the judge ruled that publishers may have more claims against college and university e-reserves if the publishers offer convenient, reasonably priced systems for getting permission (at a price) to use book excerpts online. The lack of such systems today favored Georgia State, but librarians who were anxiously going through the decision were speculating that some publishers might be prompted now to create such systems, and to charge as much as the courts would permit."

Re:generally good news, but not entirely

[cpt kangarooski]

I need to go through the actual opinion still, so I'm just relying on what others have said at this point -- and what sort of crazy judge issues a 350 page opinion for a fairly simple infringement case â½ --but I'm very concerned about the third factor analysis.

The fair use statute merely requires that courts consider the amount and substantiality of the use in determining if it is fair. As you say, there are no numbers in the statute; depending on the circumstances, this factor can come out on the favor of the infringer even if all of the work is used. Any attempt to add guidance in the form of a magic percentage will only come at the cost of flexibility. The latter is what's really important to fair use, though, as it is meant to cover all manner of unforeseen but fair uses. It is not just for academics.

Much worse, though, is that the court seems to find that the other factors all weigh strongly in favor of the defendant: the use is scholarly, it is of factual material, it has no material impact on the value or market for the works. Fair use isn't a matter of tallying up factors and giving the win to whoever has the most. The analysis is just supposed to help determine if the use is fair; courts can consider other evidence too, and can weight factors unevenly, or do basically anything else if it helps to decide the issue.

Even if the court finds that sometimes the third factor goes to plaintiffs, it is very strange that it should be enough for the use to not be fair. I would have thought for sure that it would be fair regardless, given the other factors favoring the defendant. Indeed, look at the Betamax case: fair use time shifting (not all time shifting is fair use, mind) loses on the first three factors, and only succeeds on the fourth, and arguably might not even do that do much in today's market, as compared with 1984's. Space shifting of music from CD to mp3 loaded on a handheld player likewise fails on most factors, yet was still fair use in the Diamond case.

I'm concerned that the court misunderstood and misapplied fair use here. The defendants really ought to consider appealing the portion of the case pertaining to the works they were found not to have fairly used.