I recently read the final, 350-page ruling in the GSU case and summarized it for key people in the library here, and I thought I’d share my summary for anyone else who wants to know just what happened in that decision and how it applies to libraries running eReserves operations. The full text of the GSU decision is available here (PDF). Please feel free to correct or add to this summary in the comments section. Also, IANAL (I am not a lawyer).

I’ve included the text of the “Fair Use” section of copyright law at the end for those who aren’t familiar. This section, Section 107, lays out the most important exception to the exclusive rights granted to copyright owners and is the basis for most educational copying.

Summary of the case:

On May 11th, Judge Orinda D. Evans of the United States District Court for the Northern District of Georgia handed down her decision in the Georgia State University (GSU) eReserves copyright case that has been in process since April of 2008. The complaint was brought against GSU (the defendant) by Cambridge University Press, Oxford University Press, and Sage Publications, Inc. (the plaintiffs). The plaintiffs originally brought forward 99 individual items that had been placed on eReserves at GSU, but over the course of time this list was revised. The final decision gives item-by-item decisions on 74 documents.

Important facts:

• All items in this case were excerpts from non-fiction books (monographs and edited volumes), so this decisions doesn’t provide direct precedent for articles placed on eReserve, nor does it provide direct examples of dealing with works of fiction or verse, though it does suggest that those would have to have smaller excerpts used.
• 74 individual claims of infringement examined in detail in this court decision.
• 27 claims did not undergo a fair use analysis at all: 18 because the publishers could not prove that they owned the copyright on the material in question (so this does not mean that the uses were Fair or not, just that these publishers couldn’t prove that they were the proper entities to bring suit), and 9 because the excerpts were never accessed by students. This last part was an interesting point that I’ll mention again toward the end of the section on “what we can learn.”
• Of the remaining 47 claims that did undergo analysis, 42 were ruled to be Fair Use and 5 were ruled to be infringement of the publisher’s copyright. The 5 claims that were ruled infringement were claims 11, 16, 22, 72, and 74.

What we can learn from the decision

The Role of the Classroom Guidelines:
Judge Evans clarified the role of the Classroom Guidelines in important ways, and I for one was very happy to see her analysis here. She emphasized that these guidelines are educational in nature, not law, and they certainly do not represent the upper limit of allowed copying as expressed in the law in Section 107. She rejected the word count limits altogether, and she rejected the injunction against using the same readings from term to term or semester to semester.

The Four Factor Fair Use Test:
The judge emphasized that the only way to determine whether a use is Fair is to weigh all four factors laid out in Section 107. No one factor can trump them all. Here are how the factors played out in her analysis of the 47 items to which she applied them:

1. The purpose and character of the use [in all cases favored the defendants]

• Judge Evans wrote: ”Because the facts of this case so clearly meet the criteria of (1) the preamble to fair use factor one, (2) factor one itself, and because (3) Georgia State is a nonprofit educational institution, factor one strongly favors Defendants” (p 50). So that’s great. Factor One is firmly in our pockets and was never really addressed again.

2. The nature of the copyrighted work [in all cases, because everything in this case was non-fiction, favored the defendants]

• We still don’t have documented examples of dealing with fiction or verse, which are more creative in the eyes of the law and therefore would be more protected under this factor.
• We still have no precedent for dealing with articles since all the works in this case were books.

3. The amount and substantiality of the portion taken [requires case-by-case analysis]

• The key decisions in this area revolved around the phrase “decidedly small.” The judge emphasized that the smaller the amount and substantiality of the excerpt, the more strongly it favors the defendants. The judge decided that a “decidedly small” amount of a book is:
• For books that don’t have chapters or that have fewer than 10 chapters: 10% of the work (including all copyrightable pages, which includes the index) would constituted a “decidedly small” amount of the book.
• For books that have 10 or more chapters: 1 chapter constitutes a “decidedly small” amount of the book.
• There were a couple of instances where larger excerpts were deemed Fair because the market effect was so small, so these limits are again not the maximum limits for copying. The importance, however, is that market effect is difficult to determine without court-ordered documentation from the publishers, so people who want to stay well within the safest zone should probably stick close to these guidelines.

4. The effect of the use upon the potential market [requires case-by-case analysis]

• The major disappointment for me in this decision is the precedent it sets with regards to the permissions market. Judge Evans determined that the money publishers make on copyright permissions (usually through the Copyright Clearance Center) constitutes a small but important part of their market. She decided, therefore, that where permissions for digital excerpts are conveniently gotten for a reasonable price, people making copies should think very carefully about the four factor test because this would constitute a market effect. This does not mean that they ALWAYS have to pay for permissions. There were several cases where the use was deemed Fair even though permissions were easily obtainable (because the amount was “decidedly small”), but this is still a factor that has to be weighed.
• It should be noted that many claims in this case failed even though the publishers claimed a market effect. Judge Evans emphasized that all four factors have to be weighed, and in this trial that always came down to weighing amount and substantiality against market effect.

But what about edited volumes?
Part way through the proceedings, the plaintiffs began to argue that chapters within edited volumes each constituted their own copyrighted work, rather than being a percentage of the entire volume. This meant, they argued, that copying that chapter constitutes copying 100% of the copyrighted work. The judge did not rule on this question in a way that sets precedent, so this will be something to watch for in further trials. Instead, she said that she was not inclined to agree, particularly because the publishers use one definition of “work” in the market effect section and another definition of “work” in the amount and substantiality section. In the end, though, she said they had presented this argument too late in the proceedings, so she would not take it into account.

De minimis non curat lex
One interesting point, which may be the subject of future trials or appeals, is that Judge Evans employed the legal maxim of de minimis non curat lex (“The law does not concern itself with trifles”) whenever an excerpt had not actually been used by students. For each excerpt in the eReserves system, she would look at how many times the document had been accessed. If it hadn’t been accessed, she would not perform a fair use analysis because the claim was a “trifle.” She would simply say that the claim of copyright infringement failed in each of those cases.

Burden on Libraries
The plaintiffs claimed that GSU’s eReserves policy contributed to the campus community’s infringement of the publishers’ copyrights. The judge pointed out two important things that libraries with eReserves operations should do:

• Provide an access controlled eReserves system (as GSU did). This system should be set up such that students log in and can see only those documents for courses in which they are currently enrolled. This access should go away when the course ends.
• Provide education through its eReserves policy on how much content professors can request to have loaded into the system. In particular, she says that institutions should explain what constitutes a “decidedly small” amount of a work, and what constitutes “market effect.” She acknowledged that market effect is very difficult to determine. She therefore suggests that “the only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available) (p 338). In effect, this makes the amount and substantiality component the main area for faculty to consider, and makes it more important (in the judge’s eyes) that amounts be kept “decidedly small.”

Breakdown of claims:

GSU eReserves decisions (Excel version of that table)

————————————

The “Fair Use” exception to the exclusive rights of copyright owners to copy and distribute their works.

107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include–

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

I love this. And by “I love this” I mean “oh good grief I’d cry if I weren’t laughing about this.”

So, the Associated Press reported on Amazon’s acquisition of Woot.com. Looks like pretty standard reporting to me. A couple quotes here and there to give some substance — normal stuff.

How much do I owe you?

Woot noticed the article and realized that those quotes came from Woot’s blog. Woot remembered when the AP had cracked down on bloggers quoting AP material and created a handy web form for easy calculation and payment based on the number of words bloggers wanted to use when quoting the AP. And so, Woot decided that it was only fair to charge the AP for the quoted material. Here’s what Woot said (quoted for the purpose of comment and criticism, as allowed under section 107 of Title 17):

… We couldn’t help but notice something important. And that something is this: you printed our web content in your article! The web content that came from our blog! Why, isn’t that the very thing you’ve previously told nu-media bloggers they’re not supposed to do? So, The AP, here we are. Just to be fair about this, we’ve used your very own pricing scheme to calculate how much you owe us. By looking through the link above, and comparing your post with our original letter, we’ve figured you owe us roughly $17.50 for the content you borrowed from our blog post….

If you read the whole post, you’ll find that Woot proposes a compromise. I won’t spoil it for you.

So, since I quoted for the purposes of comment and criticism, here’s my comment followed shortly by my criticism.

Comment: I love Woot’s response because THIS IS SO DUMB! Oh, wait, that might have been my criticism. I guess I find it both hard to believe and stunningly easy to believe that the AP would have a web form that does everything it can to make you believe you have to pay $17.50 for up to 50 words of quotation. (It does mention Fair Use, in the little pop-up you can open if you want to know more about this license, but it makes Fair Use seem like a pretty rare thing, and a risky thing for both you and your employer.)

Criticism: This post is pretty much all criticism, I suppose, but I’m particularly critical of the “It’s only Fair Use if we quote you, not the other way around” and the “my lawyer is bigger than your lawyer” approachs to copyright. And then there’s the AP’s list of copyright dos and don’ts where all the dos are “do know about the risks of copyright infringement to you and your employer” and all the don’ts are “so don’t infringe our copyright.”

This isn’t copyright — this is playground bullying. If you take my milk, that’s stealing. If I take your milk, that’s my right.

Yesterday, somebody pointed me to a FriendFeed thread in which an artist and a FriendFeed user were working through issues of intellectual property and Internet etiquette.

The FriendFeed user, Kol, had bookmarked an image that he found on a site that allows artists to share their work with each other. In typical FriendFeed fashion, this bookmark appeared in FriendFeed with a thumbnail of the image he had bookmarked and with places for other FriendFeed users to comment on, “like,” or re-share the bookmark and its related thumbnail image with their own sets of FriendFeed friends. The artist objected strenuously (and not at all politely) to the fact that this thumbnail appeared on FriendFeed. Kol and other FriendFeed users tried explaining that Kol had not, in fact, infringed on the artist’s rights by bookmarking her image since thumbnails do not violate copyright and since the image was licensed under Creative Commons Attribution-Noncommercial 3.0 License (though the artist has since removed that license). In short, the artist was well within her rights to ask (politely) to have her image removed from FriendFeed as a matter of courtesy, but she was probably not within her rights to accuse the original poster of wrong-doing. That’s the sanitized version, at least, which I reproduced here at some length because of difficulties with the original material.*

So, except for the attendant drama, the issues seem to be garden-variety intellectual property confusion. But all the drama involved in this particular exchange was actually kind of illuminating.

First, it reminded me that as an information consumer, I’m used to the feelings of frustration involved in finding out that I can’t freely use other people’s stuff however I want to even if I cite my sources. I run up against the flip-side of these frustrations only very rarely, however, and they’re good to bear in mind. I happily slap Creative Commons licenses on lots of the stuff I produce, but I remember all too well the first time I found my work being reproduced and shared in a way that I didn’t particularly appreciate but that fell squarely within the parameters of the license I’d chosen. There’s nothing like working up a good head of righteous indignation only to remember that they’re doing exactly what I said they could do and no more.

This particular discussion might also be less straight-forward than it at first appeared. Licenses always trump copyright, and the original image** has license-like language attached to it that prohibits “use” of the work outside of a specific community. The artist clearly thought that this applied to bookmarking and sharing via FriendFeed, though that’s not at all clear from the term “use.” Kol either didn’t read those instructions, or read them but didn’t think they applied to bookmarking, or read them but didn’t think they constituted a license. (To be fair, I’m not completely sure they are a license, either, but I think good etiquette would be to assume that they do.) And where does all of this leave the artist’s fans? If they want to share bookmarks with other fans or potential fans, they can’t turn off the “suck in a thumbnail” feature of these social networks. The only way that gets turned off is if the originating site has lock-down features like Flickr does for the images its users make private.

Little did Kol know when he bookmarked this image that he’d bring down the wrath of the artist, spark a huge debate on FriendFeed (and a ton of re-shares of Kol’s post), and set this librarian to musing about the incredibly intertangled worlds of intellectual property, etiquette, and the Internet.

* I don’t like talking about things without linking to them, but this one has me on the fence for two reason: 1) the link may die suddenly since there was a promise to delete the thread as soon as someone from FriendFeed had seen and responded to the original poster, and 2) the language in this thread is decidedly not safe for work, or for kids, or for me. Still want to see it? Here you go. [Edit: yep, the original post is gone now.] I may or may not screen-grab the post for posterity. I haven’t decided yet if that’s fair to all involved, or if I want to have that kind of language saved anywhere associated with me. Call me a prude, if you want, but them’s my boundaries and it’s up to me if I want to cross them.

** I’m aware that by linking to that image, the artist may find my post, so I’ll just say right up front that while I welcome constructive comments and discussion, I reserve the right to delete any crude or abusive comments. And I get to decide what constitutes “crude” or “abusive.”