Both sides in the Georgia State copyright infringement case – which challenges as infringement the use of excerpts from copyrighted content in the University’s electronic reserves and course management systems – have now filed motions for summary judgment, with supporting briefs and affidavits. The actual motions and arguments in support can be found here, at filings 142 (plaintiffs) and 160 (defendants).
These filings, where each side asks the judge to decide the matter without trial on the basis of the documents filed with the court, are not unusual in copyright cases. An increasing number of civil cases of all kinds are decided on summary judgment, so this is “worth a shot” for both sides. And, of course, each side believes it has an argument that wins hands down.
The plaintiffs in the case – Cambridge University Press, Oxford University Press and Sage Publications – argue that supplying readings to students without paying permission fees each semester for pretty much everything is obvious copyright infringement. They specifically attempt to refute the claim that such copying is fair use. Several aspects of that argument should cause great concern in higher education.
First, the plaintiffs argue that a fair use “checklist” is the wrong tool for helping faculty members make fair use decisions. The checklist adopted as part of GSU’s new copyright policy is, they assert, “skewed in favor of a “fair use” outcome.” This is worrying because so many institutions have adopted a form of the checklist, believing it to be appropriate in part because the Association of American Publishers seemed to endorse it when they approved revised copyright policies that include the checklist in their negotiations with Cornell and several other institutions. In fact, the Copyright Clearance Center, which is the permissions collection agency for all three plaintiff publishers, itself suggests a version of the checklist that can be found here. If there is a distinction between these checklists and that used by Georgia State, we need to know what it is, but as far as I can tell, the CCC checklist works in exactly the same way that the plaintiffs object to regarding the GSU version.
If the checklist is not a good guide for fair use, in the publishers’ opinion, what should we look to? The plaintiffs suggest two major guideposts for fair use – the notion of transformation and the Classroom Copying guidelines from 1976. Transformativeness, of course, never appears to apply to copying of small excerpts for distribution to students, unless it is given a very broad definition which the plaintiffs deny here. And the guidelines for classroom copying, which were adopted in spite of objections from higher education and are intended to apply to a different situation, cap the length of an fair use excerpt at 1,000 words. Such a limit would rule out about 99% of all readings offered to students under fair use. So we are left to ask what would be fair use in an e-reserve situation; the plaintiffs’ brief suggests that almost nothing would be permitted without paying for permission each semester.
Interestingly, the defendants’ brief does not make an argument about fair use at all, although it is implicit in their reliance on their new policy. Instead they argue two fundamental points. First, they claim that the suit is misdirected under the narrow exception to sovereign immunity that the plaintiffs are trying to exploit. This is the force of the argument that none of the named defendants have a direct or indirect role in any copyright infringement, so an injunction against them would be ineffective and the suit, therefore, should be dismissed. Their second point is that the requested injunction, because it does not permit any room at all for the exercise of fair use as defined by the GSU policy, is too broad and vague to meet the basic requirements for such orders.
I have to note in regard to these cross motions that I am not particularly a fan of deciding fair use arguments on the basis of summary judgment. Fair use is intended to force courts to make a detailed examination of the circumstances of the use in each case. All too often it has become as mechanical in court as the plaintiffs complain that the fair use checklist is. Courts ask routine and traditional questions regarding each factor and then add up the results; they do not, usually, probe as they should into specific circumstances, for which the usual questions are often a very poor substitute. This unfortunate tendency is made much worse when fair use cases are decided on summary judgment, where all the judge has is the documents filed and is unable to ask questions and seek more specific information.
So I guess I am left hoping, in this case, for one of two results. Either the defendants’ motion should be granted, in which case the case goes away on essentially procedural grounds and we are all left where we have been for years, or both motions should be denied and the case taken to trial. In the latter case, the fair use dispute could be fully aired and a useful record developed. Only in that situation would other universities be able to glean really helpful guidance from a decision.