Tuesday, October 21, 2014

Losing the Battle, Winning the War...

A couple of years ago, there was a monstrous copyright violation lawsuit involving Georgia State University. Publishers complained that GSU was basically giving away the store by having copyrighted resources available through the e-reserves system in their library. There was more considerably nuance than that; it appeared that the GSU system was pretty open, not limiting access to copyrighted materials to just those students in the class they were assigned for, and a number of publishers had tried to work with GSU (they claimed), but had been unable to reach an acceptable compromise. So, lawsuits got filed (as I referenced in this previous blog post). The bottom line of the initial decision favored GSU pretty much across the board, but it looked like the publishers wee not going to take the decision lying down. Fast forward two years, and a Federal Appeals court has essentially reversed the lower court's decision, sending the decision back to the lower court to review again.

On the surface, this looks like a big loss for Georgia State and for fair use advocates. But a number of opinions that have appeared since the decision, seem to argue that while the decision was not what they had hoped for, it appears that there are several potential victories withing the larger decision. As related in an article in the Chronicle of Higher Education's Wired Campus blog here and in Duke University's Scholarly Comunication blog here , the decision could have been far worse, as it balances criticim of the lower court's interpretation of fair use and the publisher's arguments in approximately equal measure (a separate but concurring opinion would pretty much have been a slam dunk for the publishers, which would have been VERY bad news for libraries, higher education, and fair use). By all means, read the excellent blog post from Duke and the Chronicle blog piece as well, but here are some highlights from the Duke site (with all credit to Kevin Smith, JD, the head of their Scholarly Communications office):

In my opinion, there were five major principles that publishers wanted to get from this lawsuit, and in the Appeals Court ruling they lost on all of them:
  1. Publishers wanted the Appeals Court to hold that Judge Evans should have ruled based on the big picture — the large number of electronic reserve items made available to students without permission — rather than doing an item-by-item analysis for each reading.  Instead, the Appeals Court affirmed that the item-by-item approach was the correct form the analysis should take.  This, of course, is the key that allows universities to make individualized fair use decisions, and it rejects the attempt to force all schools to purchase a blanket license from the Copyright Clearance Center (which was, in my opinion, the fundamental goal for which the case was filed in the first place).
  2. The plaintiffs wanted a ruling that non-profit educational use did not mean that the first fair use factor always favored fair use.  They wanted the Appeals Court to hold that where the copying is non-transformative, and both Judge Evans and the Appeals Court felt that the copying at issue was non-transformative, the first fair use factor does not favor the defendants, even when they are non-profit educational institutions.  But the Court of Appeals correctly applied Supreme Court precedent and held that the first fair use factor still favors fair use for such “verbatim” copying when it is done for an educational purpose without profit.
  3. The Appeals Court held that the so-called “course pack” cases, which rejected fair use for course packs made for a fee by commercial copy shops, were not controlling precedent in the situation before it, where GSU was doing the copying itself and made no profit from it.
  4. The publishers wanted a clear statement that the Classroom Copying Guidelines were a limit on fair use for multiple copies made for classroom use, defining a maximum amount for such copying of 1000 words.  They lost there too; the panel held that the Guidelines were intended as a minimum safe harbor and did not define a limit on fair use.  Therefore they do not control the decision for this type of copying.  Instead, the panel rejected the 10% or one chapter rule applied by Judge Evans as too rigid and instructed her to use a more flexible approach that takes account the amount appropriate for the pedagogical purpose.
  5. Finally, the publishers were hoping that the Appeals Court would reject the idea that the availability of a license for a digital excerpt was relevant to the fourth fair use factor; they wanted a rule that says that any unlicensed use is an economic loss for them, even if they have decided not to make the desired license available.  They lost that too; the panel affirmed that the District Court was correct to consider the availability of a license for the specific use when evaluating market harm.
These losses, which constitute the heart of what the publishers were hoping to achieve when they brought the lawsuit, are probably final.  They are now binding precedent in the 11th Circuit, and persuasive throughout the country.  The publishers could presumably appeal to the Supreme Court, but it seems unlikely the current Court would take the case because there is no split amongst the Circuit Courts, only a growing consensus about fair use.

So while the decision is definitely not a win for Georgia State, I would certainly agree that it IS a win in a larger battle to combat publisher's encroachment on legitimate fair use of materials in the educational / scholarly setting. This is not final, and the courts will undoubtedly have more to say on the matter. Libraries still need to be cautious and use good judgement in making decisions related to copyright. But Mr. Smith's advice to "Keep Calm and Carry On" seem to be very appropriate - and if a shadow of a smile creeps into your "carry on", then I would not find it out of place...

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