Tag Archives: Georgia State

Library Copyright Alliance Files Amicus Brief in GSU E-Reserves Case

On Monday, February 13, 2017, ARL together with the American Libraries Association, Association of College and Research Libraries and the Electronic Frontier Foundation filed an amicus brief in support of Georgia State University (GSU) in the e-reserves fair use case. After years of litigation and two opinions by the district court and one by the Eleventh Circuit, the case is once again before the Eleventh Circuit.

The brief opens by noting that that the continued appeals in the case are unnecessary:

Appellant Publishers (“Publishers”) and their amici don’t know when to quit. Publishers could have declared victory in 2009, when GSU modified its e-reserves policy in response to the initiation of this lawsuit. Publishers could have declared victory in 2014 after this Court reversed the district court’s 2012 decision and provided detailed guidance on how fair use principles should be applied to e-reserves. Publishers could have concluded this litigation after the district court refused to re-open the record on remand. Instead, Publishers doggedly pursue their claims concerning excerpts used in three school terms, eight years ago.

The brief then urges the Eleventh Circuit to affirm the lower court’s decision. In doing so, the brief notes that GSU’s copyright policy is consistent with the ARL Code of Best Practices for Academic and Research Libraries. The brief also suggests that the district court’s analysis of the second fair use factor (nature of the work) was flawed and the context of the works actually favors fair use. Finally, the brief notes the importance of the public interest in considering the fourth fair use factor (market harm).

On the second factor, the brief states that analysis of the second factor should be focused on “ascertain[ing] whether copyright was needed to incentivize creation and, by extension, whether or not a fair use finding helps serve the purposes of copyright.”  The brief points out that the scholarly community is a “gift culture” and while

We do not suggest that scholarly works should receive no copyright protection.  But we do agree with Judge Posner that copyright-based incentives are less necessary in the context of many academic works to serve copyright’s own fundamental goal: to further the progress of science.  Because scholarly works require “thinner” copyright protection to ensure their production, the second factor strongly favors a fair use finding with respect to all of the works at issue here.

With respect to the fourth factor, the brief points the constraints of library budgets and the growth of open access publishing.  It states that,

Placed in this context, it is clear that the public benefit of e-reserve practices such as GSU’s far outweighs any potential cost to publishers.  Although some academic publishers may have difficulty adjusting to the digital environment, predictions of the devastating impact the decision below would have on the evolving scholarly communications ecosystem are complete fiction.

A Deeper Dive Into the New Georgia State Decision

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

New Decision in Georgia State University E-Reserves Case Released; 41 of 48 Claims of Infringement Found to Be Fair Uses

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, Cambridge University Press v. Becker.  The district court originally determined in 2012 that of the 99 instances of claimed infringement, 94 of the cases were fair use and only 5 were infringing.  The case appeared before the district court again after the Court of Appeals for the Eleventh Circuit reversed and remanded the case in October 2014, directing the trial court to revisit its fair use analysis.  The Eleventh Circuit’s opinion rejected an arithmetic approach to the four fair use factors (that is, the idea that if three of the factors favor fair use, but one disfavors fair use, then fair use will always apply).

On remand, the district court considered 48 infringement claims and revisited the fair use assertions by Georgia State University.  Judge Evans found that of the 48 claims, 41 were non-infringing fair uses.  More analysis of the opinion will be available shortly.

H/T: Kevin Smith

Publishers File Motion to Reopen Record in GSU Electronic Reserves Case; GSU Opposes

On October 17, 2014, the Eleventh Circuit ruled in the Georgia State University e-reserve case, directing the lower court to revisit its fair use analysis and avoid using an arithmetic approach to the four factors (i.e., if three factors favor fair use but one does not, then fair use applies).  While the case was reversed and remanded, the Eleventh Circuit actually rejected many of the arguments advanced by the plaintiff publishers.  In its holding, the court affirmed that fair use is determined on a case-by-case basis, rejected bright-line rules, affirmed that even non-transformative uses may be a fair use, and rejected applicability of the coursepack cases.

The plaintiff publishers subsequently filed a petition for rehearing en banc, which the Eleventh Circuit rejected in January.

On remand to the district court, on February 24, 2015, the publishers filed a motion to reopen the record.  The publishers claim the need for “evidence of GSU’s ongoing conduct (e.g. its use of E-Reserves during the most recent academic term).”  Essentially, the publishers are seeking a new trial with potentially new claims, rather than allowing Judge Evans to simply revisit the analysis used with respect to the existing claims-at-issue.

On March 13, 2015, GSU filed its opposition to the motion to reopen, noting that “The record here was fully developed at trial and is complete, and from it, this Court can” make a fair use determination.  As GSU points out, there is no reason to reopen the record because the Eleventh Circuit remanded the case based on the legal analysis rather than an incomplete factual record.

GSU also points out the burdensome nature of reopening the record:

The process of re-opened discovery that the Plaintiffs propose would be grossly burdensome–requiring Defendants to, among other things, collect substantial electronic and paper records and acquire the sworn statements of yet-undetermined number of faculty and staff.  The Court would then have to use its finite resources to start anew analyzing new individual allegations of infringement–and would (According to Plaintiffs’ plan) have to do so without the benefit of trial testimony on such things as the pedagogical purposes of the alleged uses.

GSU’s opposition goes on to explain that reopening the record would be unfair given that the publishers declined to stay the case while GSU was implementing its new policy on electronic reserves:

Moreover, Plaintiffs’ Motion does not make any claims of prejudice to Plaintiffs.  Nor could Plaintiffs do so.  The Court will recall that Plaintiffs declined Defendants’ offer to stay this case during initial implementation of the Policy.  Having elected to proceed, Plaintiffs should not now be heard to complain of the record they insisted on presenting to this Court in the first place.

GSU points out that the publishers are essentially looking an entirely new trial:

The Eleventh Circuit’s and this Court’s thorough disposition of the legal and factual arguments advanced over years of litigation–including almost a month of trial testimony–simply cannot be a dry run for Plaintiffs’ “second go” at whole new allegations of infringement.

It seems clear from the publishers’ motion to reopen that they intend to aggressively pursue the case.  Given that the publishers were largely defeated the first time the case was heard in the district court and most of their arguments were rejected on appeal, it indeed seems that they want to treat the existing record as a “dry run” and now seek a new trial with a new set of allegations.

 

Misconceptions About GSU Electronic Reserves, Coursepacks and the Media Neutrality Doctrine

In recent testimony (both written and oral) at the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet Hearing on Copyright Issues in Education and for the Visually Impaired, Allan Adler, representing the Association of American Publishers, asserted that in the Georgia State e-reserves case, the Eleventh Circuit erred in rejecting applicability of the media neutrality doctrine, the principle that copyright law should apply in a similar manner to similar works in different media. Invoking the media neutrality doctrine, Mr. Adler essentially argued that the “coursepack” cases – Basic Books Inc. v. Kinko’s Graphics Corp. and Princeton University Press v. Michigan Document Services – should control and that the use of copyrighted material in Georgia State’s e-reserves was not fair use. This argument ignores several important points regarding the facts of the case, including the fact that the coursepack cases were distinguishable on grounds that had nothing to do with media neutrality.

First, the coursepack cases do not apply because material placed in electronic reserves are not the equivalent of material that is collected and bound together in a coursepack. A coursepack is like an anthology sold to all the students in a course, which the students can place on their bookshelves and continue to use long after the end of the course. By contrast, in an e-reserves system, the university provides students with temporary access privileges that terminate at the end of the semester. A student can continue to access the materials that were in the course e-reserves only if the student became the volitional actor by printing out the materials while she still had access to them. That copying by a student for her personal use unquestionably is a fair use. The media neutrality doctrine applies only in cases where the cases are truly analogous.

Additionally, the coursepack cases are not controlling because the circumstances of those cases were very different than the facts in Georgia State. In particular, the coursepack cases clearly involved commercial, for-profit copy shops and the coursepacks were sold to students for a profit. By contrast, the e-reserves at issue were run by Georgia State University, a non-profit educational institution and the use was also a non-profit, educational use. This distinction is significant under the first fair use factor which looks at “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” As the Eleventh Circuit pointed out in rejecting the coursepack cases that in these cases:

. . . the nontransformative, educational use in question was performed by a for-profit copyshop, and was therefore commercial . . . [Courts have] refused to allow the defendants, who were engaged in commercial operations, to stand in the shoes of students and professors in claiming that their making of multiple copies of scholarly works was for nonprofit educational purposes.

However, in both of the coursepack cases, the courts expressly declined to conclude that the copying would fall outside the boundaries of fair use if conducted by professors, students, or academic institutions. See Princeton University Press, 99 F.3d at 1389 (“As to the proposition that it would be fair use for the students or professors to make their own copies, the issue is by no means free from doubt. We need not decide this question, however, for the fact is that the copying complained of here was performed on a profit-making basis by a commercial enterprise.”); Basic Books, 758 F. Supp. at 1536 n.13 (“Expressly, the decision of this court does not consider copying performed by students, libraries, nor on-campus copyshops, whether conducted for-profit or not.”).

Reliance on the coursepack cases is therefore misguided as they involved off-campus, for-profit copy shops rather than non-profit educational institutions. The courts in these coursepack cases explicitly note that the holdings of these cases do not reach the issue of copying by students, professors, libraries, or the academic institutions. In Georgia State, the e-reserves system was clearly run by the university. The coursepack cases are therefore distinguishable based on the analysis done under the first fair use factor.

Additionally, the coursepack cases are clearly not binding precedent on the Eleventh Circuit. These cases were decided in different jurisdictions – in a district court in New York and by the Sixth Circuit – and therefore not controlling. While the decisions in these cases may have had persuasive value, even if they had analogous fact patterns such opinions would not bind the Eleventh Circuit.

Finally, the decisions are more than 15 years old. Fair use jurisprudence is always evolving. There is no way to know if courts in the Second and Sixth Circuits would reach the same conclusion today that they reached in the last millennium.

While the media neutrality doctrine is an important copyright principle, it – and the coursepack cases – simply do not apply in the Georgia State decision. The Eleventh Circuit correctly rejected this holdings in this line of cases when considering the fair use of Georgia State’s e-reserves system.

In Georgia State University E-Reserves Case, Eleventh Circuit Endorses Flexible Approach to Fair Use

On Friday, October 17, 2014, the Eleventh Circuit released its long-awaited decision in the Georgia State University (GSU) e-reserves case. Some key takeaways from the majority opinion include:

  • Affirms that fair use is applied on a case-by-case basis;
  • Rejects bright-line rules, such as using a ten-percent-or-one-chapter rule to allow fair use (a rule that the district court adopted);
  • Affirms that even if a use is non-transformative, a nonprofit educational purpose can still favor fair use;
  • Rejects applicability of the coursepack copying cases;
  • Finds that a publisher’s failure to offer a license will tend to weigh in favor of fair use in terms of the fourth fair use factor; and
  • Gives weight to a publisher’s incentive to publish, rather than focusing on the author’s incentive to create.

Another positive aspect of the case is the Eleventh Circuit’s discussion of the purpose of copyright, affirming the fact (as has long been held by the Supreme Court) that copyright is not a natural right of the author, but rather, is designed to stimulate creativity and progress for the public good. Nancy Sims has an excellent analysis of the court’s ruling covering what she liked and didn’t like from the opinion.

It is important to note that while the case has been reversed and remanded, the Eleventh Circuit did not rule against GSU. Instead, the Eleventh Circuit directed the district court to revisit its fair use analysis and not to take an arithmetic approach to the four fair use factors (rejecting the notion that if three of the factors favor fair use, but one disfavors fair use, then fair use will always apply).

In fact, most of the publishers’ arguments were actually rejected by the Eleventh Circuit. Kevin Smith has a great summary of five arguments advanced by the publishers that were ultimately rejected by the Eleventh Circuit.

Thus, e-reserves remain alive and well, though the exact policies on fair use for e-reserves at some institutions may need to be revisited in light of this case, particularly those that rely on a checklist. Although the Eleventh Circuit’s methodology is binding only on Alabama, Florida and Georgia, this case is persuasive authority in other jurisdictions.

Here’s what the court had to say on each of the four use factors:

Factor One (the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes): While GSU’s use was non-transformative, the nonprofit educational purpose of the e-reserves favors fair use.

The Eleventh Circuit upheld the district court’s finding on the first factor, determining that while the use of the Plaintiffs’ works was not transformative, the first factor favored GSU nonetheless. The court noted that the excerpts posted in the e-reserve system were verbatim copies converted into a digital form and were used for the same intrinsic purpose as the works. However, because GSU’s use was for a nonprofit educational purpose rather than a commercial purpose, the first factor favored GSU.

In finding that GSU’s use was for a nonprofit educational purpose, the court noted that the Supreme Court and Congress have favored fair use for educational purposes. The Eleventh Circuit noted that the user was a nonprofit educational institution and that the use of the works was clearly for educational purposes. It discussed the ways that GSU could have profited from the use or “commercially exploited” the work, but concluded that while Defendants could have profited from the use of the works (for example through collection of student tuition and fees) such reasoning is circular because any unlicensed use of a copyrighted work results in profit to the user and thus no use would qualify as nonprofit under the first factor. The Eleventh Circuit noted that GSU’s use of the works “provides a broader public benefit—furthering the education of students at a public university.” In sum, “despite the recent focus on transformativeness under the first factor, use for teaching purposes by a nonprofit, educational institution such as Defendants’ favors a finding of fair use under the first factor, despite the nontransformative nature of the use.”

Factor Two (nature of the copyrighted work): Factual works may include original expressive contents and relay more than bare facts, but this factor is of relatively little importance.

Here, the Eleventh Circuit states that highly creative works are entitled to greater protection, while the use of factual or informational work is more likely to favor fair use. The Eleventh Circuit rejected the district court’s holding that the second factor favored fair use in every instance because of the factual nature of the works-at-issue and found that the works still included expressive content. The court stated that where the works “surpass[] the bare facts necessary to communicate information, or derives from the author’s experiences or opinions, the District Court should have held that the second factor was neutral, or even weighed against fair use in cases of excerpts that were dominated by such material.” However, the court acknowledges that “the second fair use factor is of relatively little importance in this case,” noting that the works were neither fictional nor unpublished.

Factor Three (amount and substantiality of the portion used in relation to the copyrighted work as a whole): Blanket ten-percent-or-one-chapter rule is not appropriate; bright line rules must be avoided.

The Eleventh Circuit rejected the district court’s formulation favoring fair use under the third factor where GSU copied no more than ten-percent of a work or one chapter in the case of a book with then or more chapters. The court notes, “We must avoid ‘hard evidentiary presumption[s] … and ‘eschew[] a rigid bright-line approach to fair use.’” The Eleventh Circuit rejects this formulation even as a starting point in the analysis, finding that “application of the same non-statutory starting point to each instance of infringement is not a feature of a proper work-by-work analysis.”

In its discussion of the third factor, the Eleventh Circuit also rejected the Classroom Guidelines as indicative of what is permitted under fair use. The Eleventh Circuit noted that the Classroom Guidelines “do not carry force of law,” and furthermore, these guidelines “were intended to suggest a minimum, not maximum, amount of allowable educational copying that might be fair use, and were not intended to limit fair use in any way.” Here, the Eleventh Circuit references the coursepack cases, but finds that while they may provide guidance, they are not binding authority (both in terms of jurisdiction and the context).

Factor Four (effect of the use upon the potential market for or value of the copyrighted work): Market substitution is the primary concern; failure to offer a license should generally weigh in favor of fair use.

On the fourth factor, the Eleventh Circuit noted that the adverse impact of primary concern is market substitution and “[t]he central question … is not whether Defendants’ use of Plaintiffs’ works caused Plaintiffs to lose some potential revenue. Rather it is whether Defendants’ use—taking into account the damage that might occur if ‘everybody did it’—would cause substantial economic harm such that allowing it would frustrate the purposes of copyright by materially impairing Defendants’ incentive to publish the work.” The Eleventh Circuit’s apparent focus on the incentive to publish is a bit unusual, given that courts are generally focused on an author’s incentive to create rather than a publisher’s incentive to publish. Given the weight the Eleventh Circuit has given to a publisher’s incentive, academics should strongly consider open access publication options.

On the licensing point, the Eleventh Circuit found that “it is not determinative that programs exist through which universities may license excerpts of Plaintiffs’ works. In other words, the fact that Plaintiffs have made paying easier does not automatically dictate a right to payment … the ability to license does not demand a finding against fair use.” Furthermore, the court pointed to the lack of an available license as an “inference that the author or publisher did not think that there would be enough such use to bother making a license available” and in such cases, “the fourth factor should generally weigh in favor of fair use.

Finally, the Eleventh Circuit stated that the district court should have afforded the fourth factor greater weight due to the nontransformative nature of GSU’s use (as opposed to finding that each factor weighed equally in the district court’s arithmetic approach).

Ultimately, the district court will need to re-do its fair use analysis for each of the works-at-issue, consistent with the Eleventh Circuit’s opinion. In doing so, however, GSU could still prevail on its fair use claims.

TOMORROW!! Georgia State University Copyright Case: Post-Argument Panel

November 19, 2:00 pm, Rialto Center for the Arts

In 2012, the North Georgia District Court ruled largely in favor of Georgia State University in the ongoing copyright lawsuit initiated by Cambridge University Press, Oxford University Press, and Sage Publishers. The decision was the first federal court decision specifically addressing fair use and electronic reserves. Plaintiff publishers appealed on many points of the ruling.

Oral arguments in the Cambridge v. Becker (GSU Copyright) lawsuit are scheduled for the morning of November 19th at the 11th Circuit Court of Appeals, room 339. Following the arguments, Georgia State University Library and American University Washington College of Law Program on Information Justice and Intellectual Property will host a post-argument panel at 2:00 p.m. in the Rialto Center for the Arts lobby.

Panelists:

  • Brandon Butler, Moderator, Practitioner-in-Residence, Glushko Samuelson IP Clinic, American University, Washington College of Law

  • Tony Askew, Principal, Meunier Carlin & Curfman LLC

  • Jonathan Band, Owner, Jonathan Band PLLC

  • Michael Landau, Professor, Georgia State University College of Law

  • Lisa Macklin, Director, Scholarly Communications Office, Robert W. Woodruff Library, Emory University

  • Steve Schaetzel, Principal, Meunier Carlin & Curfman LLC

  • Bruce Joseph, Partner, Wiley Rein LLP

The panel is free of charge, but registration is required to attend.

There will be a free live webcast of the event at http://www.livestream.com/georgiastate