This article has been edited to add further comment on the potential economic impact for libraries. One of the most closely watched e-reserve cases in recent memory came to an end—though an appeal is still possible—on May 11, when Judge Orinda Evans of the U.S. District Court for the Northern District of Georgia ruled in Cambridge University Press (CUP); Oxford University Press (OUP); Sage Publications v. Georgia State University (GSU). The case alleged copyright infringement in GSU’s e-reserves, and in essence the judge came down on the side of libraries in a 350-page decision delivered almost a year after she heard closing arguments. Of the 75 cases of alleged infringement she considered, Judge Evans held five to be infringement. The rest were either held to be fair use, or the question did not arise, because the copying was held to be de minimis—when virtually no one actually read the posted work—or because the publishers did not demonstrate to the court’s satisfaction that they had standing to make the claim. Bruce Rich, lead counsel for the plaintiffs, estimated that 48 of the works were actually put through the full fair use analysis. The case was originally filed in 2008 and alleged many more violations. In 2009, GSU adopted a new fair use policy, and the court, in partially granting GSU’s motion for summary judgment, agreed that only infringement claims post-dating the new policy were relevant to the plaintiffs' claims for injunctive and declaratory relief. The judge directed the plaintiffs to file a proposed injunction within 20 days; defendants may state any opposition within 15 more days. (Evans also deferred consideration of awarding costs or attorneys’ fees to either side.)

Bright outlines for a safe harbor?

“By far the most fundamental difficulty is the very fluid framework for resolving fair use issues which is established by copyright law,” Judge Evans said in her opinion, and did her best to rectify that situation. Having rejected the plaintiff’s contention that the Classroom Guidelines [developed in 1976 in negotiations between publishers and educators] should be used as the dividing line between fair use and infringement with the trenchant comment, “Plaintiffs do not explain their decision to seek acceptance of the minimum standards as the maximum standard,” Evans instead proposed an alternative. “The right approach is to select a percentage of pages which reasonably limits copying and to couple that with a reasonable limit on the number of chapters which may be copied,” she said. That reasonable limit, Evans decided, is ten percent of a book with fewer than ten chapters, or of a book that is not divided into chapters, or no more than one chapter or its equivalent in a book of more than ten chapters. (For page counting purposes, Evans chose to use GSU’s methodology, which includes forward, afterword, index, dedication, etc.) However that doesn’t mean that any and all uses of a single chapter are automatically fair, it just means that, in Evans’s view, at least one of the four factors that must be considered in a fair use defense will favor the defendant. Other requirements she put forth are that access must be limited only to students enrolled in the course, and only for the term of the course. Students “must be reminded of the limitations of the copyright laws” and prohibited by policy from distributing copies to others, and the excerpts themselves “must fill a demonstrated, legitimate purpose in the course curriculum” and be narrowly tailored to accomplish it. “The use of bright line rules [specific numerical limits, rather than general guiding principles] for appropriate amount… is particularly troubling,” the Association of Research Libraries (ARL) issue brief prepared by Brandon C. Butler said, but takes comfort in the fact that “unlike the Classroom Guidelines, this numerical limit is not absolute and does not trump the other factors….the extent to which the user exceeds the limit is also weighed, not binary.” Overall, Butler concludes, the opinion creates a “very comfortable safe harbor for fair use of books on e-reserve,” and leaves libraries that choose to the option to push the envelope further.

If you can’t buy it, it might be fair to take it

The court held that nonprofit educational uses of nonfiction works meet the purposes of the use and nature of the work used criteria for a fair use defense in every instance. (She distinguished between university use and use by for-profit course pack printers such as Kinko’s, the subject of a previous case.) Other than the amount used, the other factor that determines whether a use is fair is the effect of the use upon the potential market. Judge Evans held that none of the uses impacted the sale of the books from which they were taken, since professors would not assign (nor students purchase) a whole book just to use a small part of it. She further held that, “Plaintiffs did lose a small amount of…digital permissions revenue,” but said the amount was so “extremely small” that the defendants would have prevailed if it weren’t for the Supreme Court's holding that courts must consider not only the harm caused by the defendant's own actions, but also what harm would ensue from "widespread conduct of the sort engaged in by the defendant." In considering the issue of what widespread use might do, Judge Evans placed heavy emphasis on whether there was available a “ready market” for digital excerpts. That is, permissions had to be available for excerpts and for digital files, and they had to be reasonably priced. Having permissions available only for a print excerpt, or only for the book as a whole, was not considered good enough. Of the five uses that were held to be infringing, four were Sage publications, in large part because Sage offered a “ready market” for digital excerpts at the time of the use. (In the fifth instance Judge Evans felt that the material assigned was the “heart of the work.”) To guide universities crafting their own fair use policies, Evans suggests, “The only practical way to deal with… [impact on the market] in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available).” Since 2009, many more such licenses have already become available, which is good news for libraries that want to make sure they’re safe from litigation, but makes it harder for those who may not be able to afford licensing fees to argue that their free use is fair. In Inside Higher Ed, Barbara Fister, academic librarian at Gustavus Adolphus College and LJ Academic Newswire columnist, commented that the emphasis on the availability of licensed digital excerpts "will favor large publishers and perhaps publishers that require authors to treat their scholarship as work for hire before it’s published, because it will be easier to license that work and reap new profits from it." Fister further told LJ:

"I worry that… fear of lawsuits like this... will result in institutions paying for uses that should not cost anything. The court spent over a year applying the four factors to 75 specific situations. Librarians who handle e-reserves do not have that luxury, nor do they have legal discovery to compel publishers to provide information to use in weighing the fourth factor. It would not surprise me if many institutions unilaterally decided to pay for all uses just in case. With libraries facing cuts and students staggering under unprecedented student loan debt, paying for uses that are fair just to avoid risk is both likely and deeply troubling."

The ready market argument also, however, “suggests that libraries may have a freer hand to make expanded uses of orphan works, since by definition, no one will be licensing them,” Professor James Grimmelmann of New York Law School pointed out on his blog, The Laboratorium.

Hit counts count

The judge’s version of the de minimis doctrine, in which documents that were posted but not read by anyone other than the professor and/or lawyers, may seem like a footnote to the verdict, but it potentially has wider implications, writes Kevin Smith, scholarly communications officer at Duke University and LJ Academic Newswire columnist:

“The second point I think is interesting is...that Judge Evans considered hit counts when making determinations about some of the disputed excerpts. In some cases she cuts short the fair use analysis because hit counts suggest that no students actually read the material. In those cases she calls the copying “de minimis” and ends her analysis.... This means that it will be hard to dispute about specific readings without knowing whether or not they were actually read (we know, sadly, that many such assignments are not). Putting infringing material in a system, apparently, is not enough to establish liability; plaintiffs will have to show it has been used.” (Also see Smith’s column on copyright complexity in this week's LJAN.)

Grimmelmann agrees about the implications. “This puts more teeth in the de minimis doctrine in copyright: it goes beyond the view that de minimis means ‘not substantially similar,’” he writes. “It also strengthens the argument that ‘internal use‘ copies never used to reach an audience that reads them for their content don’t infringe. Think, for example, of the HathiTrust’s archive of scans from Google Books.”

The plaintiffs respond

In addition to the three plaintiffs of record, LJ has included the American Association of Publishers (AAP) and the Copyright Clearance Center (CCC) in this section because they jointly bankrolled the plaintiffs at a cost, according to Tom Allen, president and CEO of AAP, of “several million” so far. In fact, according to the opinion, “the Court infers that CCC and AAP organized the litigation and recruited the three plaintiffs to participate.” While praising the court for denying GSU’s claim of sovereign immunity (and of course for the five instances in which they prevailed), all five of the plaintiffs issued statements decrying the court’s interpretation of fair use and its factual findings. In addition, while downplaying the 70 to five math that led some commentators to call the decision a win for GSU, several of the plaintiffs emphasized the cumulative practice of e-reserves as a greater threat to the academic publishing market than the individual threat to any work in particular. “We are disappointed at the failure of the Court in this case to recognize that GSU’s conduct amounted to systematic and industrial-scale unauthorized reproduction of our authors’ works. Such large-scale use cannot, in our view, be held to be ‘fair,’” CUP said in a statement. OUP sounded the same note, saying “the court did not consider the pattern and practice of GSU's infringement,” and the AAP’s statement said “the court failed to examine the copying activities at GSU in their full context.” On the AAP’s conference call, however, plaintiffs’ lead counsel Rich said, “The court early on expressed hostility to the analogy that you also need to look at the broader pattern of practice,” he said, sounding as though it was less that the judge failed to consider the argument as that she considered it and found it unpersuasive. That inference is supported by the text of Evans’s judgment, which reads in part, “The argument that Plaintiffs might be forced out of business is glib. It is unsupported by evidence. The argument that Plaintiffs might be forced to cut back on scholarly publications is speculative and unpersuasive on this record.” Rich continued, “If you allow a given professor to take up to 10 percent, or one chapter, of up to 30 different works, without any other textbooks, you could fulfill an entire course load of required reading. You’re creating a customized anthologized course book in competition with custom textbooks. That’s deeply troublesome to the AAP and the publishing community. The whole is greater than the sum of its parts, as it were, in terms of the negative impact on the publishing process,” he said, making an implicit call for a limit on the total number of unlicensed works that could be used for a particular course, in addition to the limit on the number of pages or chapters of each. The plaintiffs have not yet decided whether to appeal the decision; Rich said that, “AAP is going to want to take the pulse of their broader membership” first.

The defendant responds

"The judge's ruling is significant not only for Georgia State University, but for all educational fair use in general,” said Georgia State University President Mark P. Becker. “Georgia State is pleased to have been a trailblazer in this increasingly complex digital copyright environment." Georgia State University Attorney Kerry Heyward said, "While the practicality of the ruling still needs to be determined, it will provide faculty across the country a clearer and more consistent roadmap on fair use." And, in contrast to plaintiff statements that portray GSU as an outlier, Nancy Seamans, GSU’s dean of libraries, said, “The university system's policy on e-reserves was based on practices from the broader academic library community. I am pleased that Judge Evans has recognized that GSU was doing a good job implementing that policy. "