Last Friday the 11th Circuit Court of Appeals handed down its opinion on the Georgia State (GSU) eReserves Case. The Cambridge University Press et. al. v. Patton ruling (the case’s formal name) sounds pretty dire if you only read the good parts version: they reversed the original District Court decision which library folks had mostly liked quite a lot (and which I wrote about here).
Now, if Judge Vinson had had his way, the ruling would have been pretty dire. For real cringe-worthy reading, have a go at his concurring opinion starting on page 113. But the majority opinion upholds much of the method of thinking about copyright that the original District Court opinion used and which made so much sense to me (with a few caveats, but really, it was pretty good).
In effect, the new ruling says that the District Court got things mostly right, but occasionally wrong, and that now the District Court has to go back over everything and come up with a new ruling based on the Circuit Court’s instructions on how to think about things differently on a few points. Now, this could mean that not a whole lot changes the second time around, or it could mean that a lot changes on the case-by-case analysis, but for the most part I’m encouraged to see that the parts of the analysis that matter to us will remain largely unchanged.
Also, I should note that neither court opinion is law outside of the 11th Circuit (which is Georgia, Florida, and Alabama), and that whatever the District Court comes up with next will likely be appealed again, so this saga could go on for decades. Even so, these opinions give us some good guidance on how to think through the copyright decisions that we make every single day, so they are worth reading and understanding. Also, the opinions quote heavily from important case law on copyright, so they serve as an excellent introduction to the major cases involved in educational copyright.
For those of us who deal with the day-to-day work of providing course readings to students, here are the portions of the case that are relevant to our decision-making.
First of all, the plaintiffs (the publishers) really wanted the Court to make a ruling on whether eReserves, as a system and a practice, was a violation of copyright law, just in general. They cited non-transformative distribution of published works as copyright infringement. The Court refused to make that judgement, which is good news for libraries and higher education. (Had it been left to Judge Vinson, things would have gone very differently.) A practice or system can’t be fair use or not, only individual uses can be fair use or not. And furthermore, even non-transformative uses can be fair use in some circumstances (see page 73).
So if we’re to make decisions on a case-by-case basis, what will that look like? Well, one of the strengths of this ruling is also one of the things that makes our jobs harder. The Circuit Court rejects all “bright lines” or simple math that will “mechanistically” determine whether a particular use is fair or not. There’s no checklist available that will spit out a perfect answer. In fact, the District Court’s initial plan to assign each of the four factors of fair use a point and then just add up the points at the end is the primary thing that the Circuit Court said needs to be re-thought. Instead, the Circuit Court says that you have to weigh each of the four factors while you ultimately try to decide if the use will promote rather than hinder the kind of knowledge creation and sharing that copyright law was intended to encourage. The Classroom Guidelines are not law and cannot be used to make blanket categories of things fair or not fair (see pages 88-89). In fact, they say that even “best practices” can only get you so far — that only an “individualized fair use analysis” will do the trick (page 85).
While all of this is consistent with the law and with prior cases, it also makes it really tricky for libraries to advise classroom instructors about what is and is not permissible when it comes to putting readings on eReserve. In effect, this decision is saying that if you say “10% or 1 chapter and everyone’s happy” you could still be in danger of infringing or causing infringement. Instead, this ruling suggests that the only way to move forward intelligently is to make and record individual, case-by-case assessments for each use. Recording the decision-making process is important because if an employee of a non-profit educational institution, library, or archives makes a decision “in good faith” that the use is fair use, the court will not levy statutory damages (see section 504(c)(2) of copyright law). If you’re looking for a model of this kind of policy, the University of Minnesota has a fantastic web form that talks people through their case-by-case analyses and then allows them to save a copy of their decision-making process: Thinking Through Fair Use. One option would be to have classroom instructors attach something like this as a cover sheet with anything they submit for eReserves.
So, how then shall we think about the four factors? The first factor is often seen as a win for educational copying (especially since “multiple copies for classroom use” is written into the fair use section of copyright law, section 107). The 11th Circuit says it’s not quiet that simple, but then ultimately says that GSU’s uses were non-profit enough and educational enough that the first factor favors fair use pretty much across the board.
The second factor was up for some debate. The District Court said that since the works at issue were all non-fiction, the second factor weighed in favor of fair use. The Circuit Court countered that there can be plenty of creative intellectual work in non-fiction publications, so this factor really has to be applied on a case-by-case basis to each use. At best this factor is neutral in determining whether the use was fair or not.
Predictably (by now) the third factor also has no easy answers. You can’t just say “10% or 1 chapter will always be safe.” Instead, you have to decide if you’re taking just what you need in order to accomplish goals that are consistent with fair use. Essentially, you have to balance this factor with the other three on a case-by-case basis.
Practically speaking, the Circuit Court sets an impossible bar for making decisions about the fourth factor, the Market Effect factor. They would like the case-by-case analysis to come up with a yes or no answer to the question: Will this use substantially impact the market for this work or for licenses of this work (but only the license piece if there’s a substantial license market for the piece)? There’s really no way for someone outside of the publishing industry to have access to the numbers and projections that would make this determination possible. Probably the closest approximation would be to decide that if there is a license available for digital excerpts, we should assume that that weighs against fair use for the fourth factor. I’m not happy with the license market becoming a market, and I’m really not happy with the massive emphasis on economics, but that appears to be the way the 11th Circuit is thinking about things. Remember, though, that having one factor weigh against fair use is not the whole story. You still have to weigh that one factor against the other three and against the ultimate mission of fair use and copyright. No easy answers allowed.
And finally, a word of caution. You may find people talking about what constitutes a “whole book” when calculating percentages copied. This issue has not been decided. The publishers want it to be the main body of the book, and GSU wanted it to be all the pages in the published book, including the index and tables of contents and such. The District Court decided not to answer this question because it was raised too late in the proceedings, and the Circuit Court said that the District Court was within its rights to decide not to decide. So far, that’s as much as we know.
More coverage from people who know more than I do: