If you’re interested in both copyright and higher education, then you undoubtedly already know that on March 31 Judge Orinda Evans handed down a new decision in Cambridge University Press et al. v. Patton et al., aka “the Georgia State case.” For those who haven’t been following along, the Georgia State case involves a lawsuit brought by a number of academic publishers against Georgia State University for their electronic book reserves (or “e-reserves”) service, which they contend infringes their copyrights in the works being placed on reserve. Because of the ubiquity of such programs, this is widely regarded as one of the most important cases involving libraries and copyright to make its way through the courts since the passage of the Copyright Act of 1976.
The case was decided in favor of Georgia State in 2012, but the publishers appealed, and in 2014 the original ruling was vacated and the case was sent back to Judge Evans. The good news for libraries is that in her new decision, she has once again ruled in favor of Georgia State: she found that only four* of the 48 challenged excerpts were infringing (down from five in the original case) and awarded court costs and attorneys’ fees to GSU as the prevailing side (as she did previously). Both Kevin Smith at IO: In the Open and Brandon Butler have already posted more detailed analyses which I will not attempt to outdo! In brief, though, Smith notes that for him there are two fundamental takeaways:
- Libraries should continue doing what they’ve been doing, which he characterizes as “making careful fair use decisions and relying on those decisions when [they] feel the use is fair.”
- In light of the fact that Judge Evans relied heavily on the income from licensing reported by the publishers when weighing the market harm caused by GSU’s e-reserves program, Libraries should “should resort to paying for licenses only very rarely, and when there is no other alternative” (such as improving the fair use situation by shortening the excerpt)
Butler strikes many of the same notes, and adds hopefully that in light of this new ruling, “[p]erhaps now Oxford, Cambridge, and Sage (and their paymasters at the CCC and AAP) will decide it’s time to stop paying GSU to kick their butts in court.”
What remains unclear, unfortunately, is what this ruling means for CCUMC members who operate electronic media reserves services. Here are some thoughts:
- Judge Evans’s finding that Factor 1 (purpose and character of the use) always favors nonprofit educational institutions when the purpose is teaching students would seem just as applicable to media reserves services as book reserves services like GSU’s. Judge Evans gave this factor a weight of 25% of her total fair use analysis.
- Following the guidance of the appellate court, Judge Evans’s Factor 2 (nature of the copyrighted work) analysis consists of asking whether or not the excerpt in question contains “evaluative, analytical, or subjectively descriptive material that surpasses the bare facts necessary to communicate information, or derives from the author’s experiences or opinions,” with a finding that they do weighing against fair use. It’s hard to think of a documentary or fiction film that wouldn’t pass this test; that said, this factor only counts toward 5% of the total fair use evaluation in Jude Evans’s framework.
- Although the appellate court concluded that Judge Evans erred in her original Factor 3 (amount and substantiality of the portion used) analysis by establishing a “bright line” test of 10% of the whole in determining whether or not a use was fair, she still considers the percentage of the work used in each of her analyses. This would seem to preclude an entire work from being placed on reserve, unless doing so could be considered “transformative” in some way. ACRL’s Code of Best Practices in Fair Use for Academic and Research Libraries states both that, 1) “works intended for consumption as popular entertainment present a case for transformative repurposing when an instructor uses them (or excerpts from them) as the objects of commentary and criticism, or for purposes of illustration,” and, 2) “it will not infrequently be the case that access to the entire work (e.g., an illustrative song in a class on the history of popular music) will be necessary to fulfill the instructor’s pedagogical purpose.” It seems clear from this what each side would argue if a media reserves service which allowed entire films to be used was ever the subject of a lawsuit!
- In the meantime, Kevin Smith reminds us that §504(c)(2) of U.S. copyright law grants employees of nonprofit educational institutions relief from statutory damages as long as they believe “and have reasonable grounds for believing” that their use is fair. The argument for transformativeness outlined above would thus almost certainly limit the liability of the operator of a media reserves service.
- The puzzle for me, then, is how Judge Evans’s Factor 4 (effect of the use upon the potential market for or value of the copyrighted work) analysis would apply to media reserves. In the GSU case, she considers the availability of digital permissions of excerpts of the work in question, the amount of money that GSU deprived the publisher of by making excerpts available to students for free (determined by considering the amount the publisher charges for said excerpts), and whether or not widespread unlicensed use of equivalent excerpts would impair the publisher’s incentive to publish the work (determined by considering the publisher’s actual revenue from sales of excerpt licenses). A film distributor would need to both license excerpts of the works in their catalog available to a media reserves service and also demonstrate that other institutions are purchasing these licenses in order for them to prevail according to this framework, which Judge Evans gave a weight of 40%. How many distributors pass this test? In the case of placing entire films on reserve, assuming the argument for transformativeness holds, the question would be what constitutes a reasonable price to license an “excerpt” equal in length to the film in question.
So, in summary, many questions remain! Of course, as Sarah McCleskey from Hofstra University said last week in a post to the Videolib listserv, “maybe I'm being naïve here, but I feel like librarians who are acquiring streaming content generally have respect for content providers and want to use content responsibly.” I agree with her assessment, and I think as long as the operators of media reserves services and film distributors are talking to one another, there’s enough guidance in Judge Evans’s decision for all parties to come to an agreement about a system that works for everyone.
*Kevin Smith and Brandon Butler both mention the possibility that the summary statement at the end of Judge Evans’ may contain errors in their blog posts, and upon double-checking I discovered that three works--Professor Esposito’s use of The Sage Handbook of Qualitative Research (Second Edition), Professor Harvey’s use of The Power Elite, and Professor Ohmer’s use of The Sage Handbook of Qualitative Research (Second Edition), all in Fall 2009--are indeed incorrectly identified as infringing.