Since the ruling from the Eleventh Circuit Court of Appeals in the Georgia State copyright case came out two weeks ago, most commentators have come to the same conclusions. It is a mostly negative ruling, in which publishers actually lost a lot of what they were fighting for. Georgia State also lost, in the sense that the case is not over for them and they are no longer assured of being reimbursed for their attorney’s fees and court costs, as Judge Evans had originally ordered. But apart from those parties to the case, has the library community lost by this decision, or gained? Once again, what we have gained is mostly negative — we know that we do not have to strictly observe the 1976 Classroom Copying Guidelines, we know that the cases involving commercially-produced course packs do not dictate the fair use result for e-reserves, we know that 10% or one chapter is not a bright line rule. But there is little benefit in knowing how NOT to make fair use decisions; it is easy to see why one commentator has pled for bright line rules.
One affirmative point we can take from the case is that we know we still can, and must, do item-by-item analyses to make fair use decisions. But what exactly should the process for those decisions look like?
As Brandon Butler from American University has pointed out, the decision-making processes will be different when we are assessing uses for teaching that are transformative versus those, like e-reserves, that are not. We still have a good deal of freedom when the use is transformative — when the original material becomes part of a new expression, a new meaning, or a new purpose. And this is important for a great deal of scholarship and teaching. We should not lose sight of this important application of fair use, or assume, incorrectly, that the 11th Circuit ruling creates new limits on transformative fair use.
But when we must make decisions about digital course readings, we need to apply the “old-fashioned” four factor test. What does it look like after the Appeals Court ruling? I am afraid it has gotten pretty muddy:
The first fair use factor — the purpose and character of the use — continues to favor fair use whenever that use is undertaken by a non-profit educational institution. If a commercial intermediary is involved, as was the situation in the course pack cases, this is no longer true. But where there is no profit being made and the user is the educational institution itself, the first factor supports a claim of fair use. And that is where the clarity ends.
The second factor — the nature of the original — can go either way, depending on the specifics of the work involved. Is it more factual or interpretive? This is a judgment call, and one which librarians may be hard-pressed to make when processing a number of e-reserve requests in a discipline they are unfamiliar with. The good news is that the Court said that this factor is relatively unimportant, so the safest course may be to consider this factor neutral; call it a draw — at least where the item is not clearly creative — and move on.
On the third factor we thought we had a rule, even if many of us didn’t like it — 10% or one chapter was the amount that Judge Evans said was “decidedly small” and therefore OK for fair use for digital course readings. The bad news is that we no longer have that rule. The good news is that we no longer have that rule. The 11th Circuit panel wanted a more nuanced approach, that balances amount with the other factors and especially looks at how appropriate the amount used is in relation to the educational purpose. When the other factors line up in favor of fair use, this approach could well allow more than 10%. If the other factors tend to disfavor fair use, only a much shorter portion might be permissible. It is just very hard, after this ruling, to have clear standards about the amount that is usable, and that makes things difficult for day-to-day decisions.
With the fourth factor — impact on the market for the original — the 11th Circuit made things even more unclear. The panel actually affirmed the lower court in its analysis of this factor, emphasizing that it is permissible to take into account the availability of a license for the specific use as part of evaluating this factor. So if a license for a digital excerpt is unavailable, does that mean this factor favors fair use, as Judge Evans said? Maybe, but the 11th Circuit added two complications. First, it said that the Judge should have included the importance of license income to the value of the work in her fourth factor reasoning, rather than treating it as an additional consideration for breaking “ties.” Second, they said that the fourth factor should have more weight in non-transformational settings. How are we to put these instructions into practice? Libraries do not have access to publishers’ accounts, as the judge did, so we cannot assess the importance of licensing income (nor can we trust publishers to give us straight answers about that importance). And what does more weight mean? If there is no digital license available, does more weight on this factor mean more room for fair use, perhaps of a larger excerpt? Again, maybe. But it also seems to mean that where such a license is available, even 10% or one chapter might be too much for fair use.
How does one swim in water that is this muddy? The answer, of course, is very carefully. We must keep on making those decisions, and we do have space to do so. The fair use checklist, by the way, received a relatively sympathetic description from the 11th Circuit, but not a definite embrace. At this point, my best advice is to keep on doing what we have been doing, thinking carefully about each situation and making a responsible decision. I would recommend a somewhat more conservative approach, perhaps, than I might have done three weeks ago, especially when a license for a digital excerpt is available. But the bottom line is that the situation is not much different than we have always known it to be, there is just a little more mud in the water.
Those of us who heard the oral arguments in the Eleventh Circuit Court of Appeals last November, in which the publishers appeal of the District Court ruling favoring fair use in their copyright infringement lawsuit against Georgia State was heard, mostly expected a discouraging result from the Appellate panel. An initial or cursory reading of the opinion issued by the panel of the 11th Circuit on Friday might even confirm those fears. After all, the fairly positive ruling from the District Court is reversed, the injection and the order for the publishers to pay GSU’s costs and attorney’s fees are both vacated, and the whole case is remanded back to the District Court to reconsider. But once one begins to read carefully, the panel opinion gets much better. All of the big points that the publishers were pushing, which consequently are the really bad potential rulings for higher education, go against the publishers. In many ways, they won a reversal but lost the possibility of achieving any of their most desired outcomes. Higher ed didn’t exactly win on Friday, but the plaintiff publishers lost a lot.
There is a thorough and smart analysis of the ruling from Nancy Sims of the University of Minnesota found here.
For those of us struggling to make responsible fair use decisions on a day-to-day basis, this Appeals Court ruling doesn’t actually change much. The message for us is that it could have been much worse, the case is far from over, and we must just keep on making the same kind of reasoned and reasonable fair use decisions we have been making for years.
What we got from the three-judge panel of the Eleventh Circuit on Friday is a mostly negative ruling that outlines where both Judge Evans of the District Court and the plaintiff publishers are wrong, as the panel thinks, about fair use. To be exact, two judges — Tjoflat and Marcus — tell us those things. The third judge, Vinson, concurs in the result — the reversal and remand of the case — but would have accepted virtual all of the publishers arguments and closed the door on fair use for even very small classroom readings. His concurrence suggests that getting an opinion together was probably a difficult process involving a lot of compromise (it took eleven months), and it also tells us how bad the opinion could have been for universities. Instead, what the panel majority issued is mostly bad for the publishers.
In my opinion, there were five major principles that publishers wanted to get from this lawsuit, and in the Appeals Court ruling they lost on all of them:
- Publishers wanted the Appeals Court to hold that Judge Evans should have ruled based on the big picture — the large number of electronic reserve items made available to students without permission — rather than doing an item-by-item analysis for each reading. Instead, the Appeals Court affirmed that the item-by-item approach was the correct form the analysis should take. This, of course, is the key that allows universities to make individualized fair use decisions, and it rejects the attempt to force all schools to purchase a blanket license from the Copyright Clearance Center (which was, in my opinion, the fundamental goal for which the case was filed in the first place).
- The plaintiffs wanted a ruling that non-profit educational use did not mean that the first fair use factor always favored fair use. They wanted the Appeals Court to hold that where the copying is non-transformative, and both Judge Evans and the Appeals Court felt that the copying at issue was non-transformative, the first fair use factor does not favor the defendants, even when they are non-profit educational institutions. But the Court of Appeals correctly applied Supreme Court precedent and held that the first fair use factor still favors fair use for such “verbatim” copying when it is done for an educational purpose without profit.
- The Appeals Court held that the so-called “course pack” cases, which rejected fair use for course packs made for a fee by commercial copy shops, were not controlling precedent in the situation before it, where GSU was doing the copying itself and made no profit from it.
- The publishers wanted a clear statement that the Classroom Copying Guidelines were a limit on fair use for multiple copies made for classroom use, defining a maximum amount for such copying of 1000 words. They lost there too; the panel held that the Guidelines were intended as a minimum safe harbor and did not define a limit on fair use. Therefore they do not control the decision for this type of copying. Instead, the panel rejected the 10% or one chapter rule applied by Judge Evans as too rigid and instructed her to use a more flexible approach that takes account the amount appropriate for the pedagogical purpose.
- Finally, the publishers were hoping that the Appeals Court would reject the idea that the availability of a license for a digital excerpt was relevant to the fourth fair use factor; they wanted a rule that says that any unlicensed use is an economic loss for them, even if they have decided not to make the desired license available. They lost that too; the panel affirmed that the District Court was correct to consider the availability of a license for the specific use when evaluating market harm.
These losses, which constitute the heart of what the publishers were hoping to achieve when they brought the lawsuit, are probably final. They are now binding precedent in the 11th Circuit, and persuasive throughout the country. The publishers could presumably appeal to the Supreme Court, but it seems unlikely the current Court would take the case because there is no split amongst the Circuit Courts, only a growing consensus about fair use.
So if the publishers lost on everything that really mattered to them, why was the case reversed?
First, as I have said, this is a big loss for the publisher plaintiffs, but it is not a win for GSU. With the reversal of the District Court ruling and the injunction and fee award vacated, their copyright policy is again up in the air. And, of course, they have lost the immediate prospect of collecting about $3.5 million in costs. But for now, they, like all libraries, should probably just carry on with their normal practices and wait to see what happens on remand.
When (if?) the case gets back to Judge Evans, who I very much doubt wanted it back, the fair use analysis will look somewhat different. The Appeals panel found specific errors in her analysis of the second and third fair use factors. On the second factor they have told her that she cannot presume that the works in question are all “informational.” She has been told to do a work-by-work evaluation, but also told that this factor is not very important. On the third factor, the amount used, the panel said that her bright-line rule of no more than 10% or one chapter was too rigid (as would have been the much lower bright-line rule the publishers wanted). Here too, the Appeals Court wants a more nuanced and fact-specific analysis, looking at both quantity and quality (the heart of the work). Significantly, they have told Judge Evans to look at the pedagogical appropriateness of the excerpt when determining how the amount factors into a fair use analysis. Since this corresponds with what many of us tell campus faculty — use only what you really need and no more — it is nice that the panel approved. Finally, Judge Evans has been told to give the fourth factor — market harm — more weight, rather than counting all the factors equally. This would probably, but not certainly, result in fewer findings of fair use. Instead of the split we got — 43 fair uses versus 5 infringements (plus 26 for which there was no prima facie showing of infringement)– there would probably be a different division. Maybe 30 excerpts would be fair use and 18 infringing; who knows? But I think we should consider whether or not getting to that point really benefits anyone.
Which brings me to considering what the various players should do now, in light of this ruling.
The publishers, as I say, have pretty much lost even as it looks like they were winning. There is no good that can come out of a remand for them. At best they will get that different division between fair use and infringement as a result, and will be able to use it to spread a little more fear amongst academic libraries about the uncertainty of fair use. But that is not their real goal, I hope. They were hoping to radically change the landscape, and they have failed spectacularly. If there is any common sense left in their board rooms and executive suites, they need to considering settling with Georgia State and then engaging in real, good-faith negotiations with higher education and library groups. Don’t open those negotiations with threats, as you did before. We now know how toothless your threats are. But it is still the case that libraries and faculties would like some standards they can follow that are realistic in light of what the courts have told us. There is no windfall for publishers in such negotiations, but there might be some stability, not to mention the savings they will realize if they stop wasting money on foolish and unavailing litigation.
As for academic libraries, this long, drawn-out case, although not over yet, appears to have been much ado about nothing. We still should be making careful, responsible and good-faith decisions about copyright and fair use, just as we have done for years. We need to educate ourselves, look at the array of precedents we have from the federal courts, and continue to do our best. There has been no revolution, and no dramatic alteration of the conditions under which we do our work. The bottom line is that, after this ruling, libraries should just keep calm and carry on.
Policy on Electronic Course Content
For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
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- Feeding the Goose: Thoughts on Fair Use and the GSU Decision | The Scholarly Kitchen on GSU appeal ruling — the more I read, the better it seems
- Appellate Court Reverses District Court Judgment in Publishers v. Georgia State U. Fair Use Case | LJ INFOdocket on A reversal for Georgia State
- Jen Holton on Are fair use and open access incompatible?
- Karen Jensen on Jury instructions go missing
- Dave Hansen on Jury instructions go missing