A practical guide to the 2016 Georgia State eReserves Copyright Case for Librarians

The academic library world has been watching the Georgia State (GSU) eReserves copyright lawsuit with interest for half of my career, and now there’s a new ruling in the case. On the one hand, I recommend reading the ruling because there’s interesting language in Judge Evans’ Fair Use assessments for each item at issue, and every time I watch someone who knows a lot about copyright go through the four factor test I learn a little bit more about how I might apply it in my own work. On the other hand, it’s 220 pages long, so there’s that.

Oh, and another thing, I’m not a lawyer and don’t even play one on TV. I’m just a librarian who takes an interest in copyright but has no legal advice to give.

History of this case

In case you’ve forgotten how we got to this ruling, Cambridge University Press and a few other publishers sued GSU over book chapters that had been scanned and loaded into GSU’s eReserves system, 99 items in all, of which Judge Evans ruled on 74. The first ruling in that case was back in 2012 by Judge Orinda Evans (and I wrote a Practical Guide here). The publishers weren’t particularly thrilled with the outcome, so they appealed the case, and the appellate court handed down a ruling in 2014 that sent the case back to Judge Evans with instructions about how to amend her item-by-item Fair Use analyses (and I wrote a Practical Guide here). This Judge Evans has now done for the 48 items that the publishers thought were still at issue, resulting in the 2016 ruling that came out on March 31st. If you’re interested, here are all the details and filings involved in Cambridge University Press et al. v. Patton (this case’s official name).

One of the main things that the appellate court asked Judge Evans to do was a much more thorough analysis of the “Market Effect” (Factor Four), delving into year-by-year sales and permissions licensing fees to see what the effect of unpaid nontransformative copying really might have been on those two markets. This plus the appellate court’s insistence that there should be no “mechanistic” Fair Use analysis means that the new ruling isn’t very generalizable to on-the-ground decision-making in our libraries and classrooms. Still every new ruling helps to clarify the boundaries of Fair Use, so this one is still worth paying attention to.

In this case, of the 48 items under consideration, 4 were ruled to be copyright infringement, and all of these 4 had previously been ruled infringement in the 2012 version of the ruling. Interestingly, of the 48 items, only 2 decisions changed as a result of the appeals process:

1. One item had previously been rejected because the publishers hadn’t sufficiently proved that they owned the copyrights in the first place. This one was now ruled to be Fair Use, so the publishers must have provided that proof at some point.
2. One item had previously been ruled infringement, and this time it was ruled to be Fair Use.

If you’re a real nerd, here’s a spreadsheet I made to track the item-by-item analysis and compare their outcomes between 2012 and 2016.

Highlights of what librarians should know

1. This ruling makes it clear that there is no transformative nature to eReserves. Judge Evans says, “the excerpts are nontransformative because they are mirror-image copies of a part of the book” (page 5). I’ve heard some people wonder if readings like this might be transformative for various reasons including presenting only excerpts in juxtaposing items in ways the original publishers didn’t intend. This ruling makes it clear that rearranging how students experience the readings is not a transformative use.
2. Because the copying was nontransformative, Factor Four (the “Market Effect” factor) was given the majority of the weight in the Fair Use analyses for each item.
3. GSU’s status as a non-profit educational institution, and all of this copying done in the service of teaching, Factor One (the “Nature of the Use” factor) always favors Fair Use. One useful thing to note is that the professors in the courses were questioned about exactly how each of the readings figured into their courses, and this information informed both Factor One and also Factor Three, the “Amount and Substantiality” factor. If the amount copied was “narrowly tailored” to the professor’s pedagogical goals (see page 22 for example), that helped tip things toward Fair Use.
4. For each item, two markets were considered: the market for sales of the full book, and the market of permissions fees for the book chapter(s) when available. The publishers worked very hard to make it look like if there are licenses available for the chapters, then faculty and librarians should pay those fees almost without thinking. Nancy Sims (J.D., M.L.I.S.) and Kevin Smith (J.D.) strongly advise the opposite. Smith’s contention is that there will only be a market for those licenses if we pay for the licenses all the time. If we don’t pay for the licenses unless we really have to, then there’s no market to effect. I think what he has to say on the matter warrants a nice long quote:
   

   “We should resort to paying for licenses only very rarely, and when there is no other alternative.  The simple fact is that the nature of the analysis that the Court of Appeals pushed Judge Evans into is such that licensing income for the publishers narrows the scope for fair use by libraries.  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 excerpt?  Buying a separate license should be a last resort.  Doing extensive business with the Copyright Clearance Center, including purchase of their blanket campus license, is not, in my opinion, a way to buy reassurance and security; instead, it increases the risk that our space for fair use will shrink over time.” (emphasis mine)

5. At the appellate court’s demand, Judge Evans was directed to pay careful attention to Factor 2 (the “Nature of the Work”) factor. This is the factor where if the item is creative, that makes copying less fair, and if it’s not creative, that makes copying more fair. (At the extreme, lists of phone numbers in the phone book are not creative enough to be copyrighted.) Some people have painted this with a very broad brush and said that fiction is creative and non-fiction is not creative. That’s obviously not nuanced enough. It was really interesting to watch Judge Evans evaluate each excerpt looking at writing style and whether the author provided opinion or evaluation. One item’s analysis on this factor ended with, “Author opinion, subjective description and evaluative expression dominate. Factor two disfavors fair use” (pages 36-37). Only 2 of the 48 items in this case came through with a “favors fair use” on Factor Two. The other 46 were either neutral or disfavored fair use.
6. Given all of this, but #3 and #5 in particular, it was reinforced for me how important it is that the faculty member do the fair use analysis before putting things on eReserve. There’s no way that library staff would be able to carefully weigh the four factors without reading the works and knowing exactly how they will fit into the syllabus.
7. And finally, I really appreciated Kevin Smith’s point that since very little of the Market Effect analysis is possible without court orders, making Fair Use decisions in “Good Faith” becomes all the more important. That way employees of non-profit educational institutions or libraries are not subject to statutory damages. (And I would add to his point that keeping records of these good faith decisions is very important.)

Further Reading (by people who know more than I do):

• Kevin Smith, J.D. “Here we go again: latest GSU ruling an odd victory for libraries“
• Brandon Butler, “My GSU Hot Take“