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.