Last week, on March 31, 2016, the District Court for the Northern District of Georgia released its opinion on remand in the Georgia State University e-reserves case. The case had been remanded to the district court in October 2014 when the Eleventh Circuit directed the lower court to use a revised methodology for determining whether fair use applied.
While the district court originally found in 2012 that of the 99 instances of claimed infringement, 94 were non-infringing, in the new opinion only 48 cases were evaluated (due to the fact that the original ruling found that either no prima facie case for infringement had been made and the publishers did not appeal this portion of the ruling). The new opinion’s conclusion finds that 41 of the 48 cases are fair uses, though as others have pointed out (and is discussed in an example below), some of the listed cases of infringement in the summary were found to be fair uses in the text of the opinion. In fact, in reading the full opinion, it appears that 44 of the 48 cases were found to be fair uses.
Before doing a fair use analysis on each individual claimed infringement, Judge Evans explains here approach. She notes that she will evaluate each factor individually, then weigh them together. She also states that the analysis applied “will be specific to the nonprofit educational purpose of teaching and the nontransformative nature of the use (mirror image copying).” This point is an important one as the analysis would not be the same in the vast majority of other fair use cases where the use would be considered transformative and therefore should not be used as guidance in transformative use cases.
Judge Evans explains her methodology for each factor.
Factor one: “Factor one will favor fair use in all cases. It will not ‘strongly favor’ fair use.”
Factor two: Evaluated on the standard set by the Eleventh Circuit which requires Judge Evans to consider whether the information nature of the non-fiction books are mixed with opinion and scholarly writing. Previously, Judge Evans presumed that the use of nonfiction works caused factor two to weigh in favor of fair use and the Eleventh Circuit rejected this presumption. The Eleventh Circuit’s distinction between purely factual or deriving from the author’s opinions is troubling, but the appellate court acknowledged that it was a relatively unimportant factor. Ultimately, Judge Evans finds that factor two is generally neutral and even where it weighs against fair use, because of the small weight afforded to this factor fair use may still prevail, mitigating the Eleventh Circuit’s reversal on this point.
Factor three: Factor three “will take into account the effect of the favored nonprofit educational purpose of the use under factor one, plus the impact of market substitution as recognized under factor four, in determining whether the quantity and substantiality (value) of Defendants’ unlicensed copying was excessive. All relevant record evidence will be considered; the factor three outcomes will vary.” Factor three will no longer be guided by the approach Judge Evans took in 2012, which was rejected by the Eleventh Circuit, in using a 10%/1 chapter rule.
Factor four: Judge Evans looks to whether licenses were available in 2009 and the factor “will initially favor Plaintiffs when digital permissions were available in 2009.” However, she notes that the Eleventh Circuit held that the Defendants may demonstrate that “demand for excerpts of a particular copyrighted work was so limited that repetitive unpaid copying of excerpts from that work would have been unlikely even if unpaid copying of excerpts was a widespread practice in colleges and universities. In such a case the actions of Defendants in using unpaid excerpts would not have caused substantial damage to the potential market for the copyrighted work to such a degree that Plaintiffs would lose the incentive to publish the work. Defendants may also seek to prove that their actions . . . . did not substantially affect the value of the copyrighted work.”
She then discusses how the factors will be weighted, with factor four being given more weight and factor two given very little weight. The opinion states, “This Court estimates the initial, approximate respective weights of the four factors as follows: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for factor four.”
Under the new framework, Judge Evans rules that four of the claims were infringing; all four were also found to be infringing the first time she considered the case and therefore it was not particularly surprising that she ruled against fair use for these claims once again. Three of these claims involved the same text, The Sage Handbook of Qualitative Research (both the second and third editions) and were assigned by the same professor. In these three claims, the professor requested two, four and seven full chapters be uploaded (with additional requests for excerpts amounting to less than full chapters) be uploaded, respectively.
Ultimately, the case and opinion involves the narrow case of e-reserves and its analysis would not apply to transformative use cases. Even in the case of e-reserves, it will be difficult to evaluate the fourth factor in the manner Judge Evans going forward because the financial data disclosed as a result of the litigation is not likely to be readily available.
Kevin Smith wisely points out that despite the fact that the opinion may not be widely applicable or easy to apply, there are important takeaways one of which is that libraries should find ways to improve the fair use case:
To my mind, this means that whenever we are faced with an e-reserves request that may not fall easily into fair use, we should look at ways to improve the fair use situation before we decide to license the excerpt. Can we link to an already licensed version? Can we shorten the excerpts? Buying a separate license should be a last resort.
Ultimately, this opinion may have limited value in providing guidance going forward as it applies in a narrow context and had the benefit of data that isn’t readily available. However, it is still a win for the libraries