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.

 

9 Responses to Summary judgment in the GSU case?

  1. Dorothea Salo says:

    I confess I almost hope that the plaintiff’s motion carries, because the world would explode.

  2. Simon Spero says:

    Did they preserve unclean-hands/copyright misuse for trial? I saw they referenced it in the initial answer

  3. Simon Spero says:

    It’s also interesting to see that Plaintiff’s computer expert is CEO and president of “ADA Core Technologies”, a company started in 1994.

    ADA is considered by almost everyone in the C4I community to be as epic a fail as OSI

  4. Sandy Thatcher says:

    Kevin exaggerates mightily when he claims that the plaintiffs in this case argue that copying “pretty much everything” for classroom use is beyond fair use. Just take a look at the actual amounts of material alleged to be infringed in the supporting documents to get a sense of how far beyond the norm faculty at GSU have gone, encouraged by what once was–in the view of Kenny Crews, GSU’s own expert witness–a policy at the extreme fringe of university policies. The GSU lawyers cagily dumped that old policy when they realized it couldn’t be defended in court, substituted a new policy copied superficially on other standard university policies (especially ones developed by Crews himself at Indiana and Columbia), and then proceeded to get the judge to rule out of bounds (on sovereign immunity grounds) that all the past behavior under that previous policy should not be considered as evidence for the judge to rule upon, thus limiting the admissible evidence to just uses during three terms, including a summer term. The defendants’ summary judgment brief argues, accordingly, that the “evidence” shows reduced copying compared with the previous copying–but conveniently ignores the fact that typically courses are not repeated every term in universities, so it is not surprising that the exact same materials were not copied again. As for the checklist, the plaintiffs’ brief makes it abundantly clear why GSU’s checklist approach differs from that employed elsewhere–and from the approach Crews himself endorses. GSU mandates a mathematical “add them up” checklist that numerically treats all the fair use factors the same, which goes against the entire spirit of fair-use analysis and is deeply flawed, as Kevin well knows. I have no objection to a checklist myself as a useful place to start an analysis, but it should not be used mechanically in the way GSU requires and tries to justify. That is what sets GDSU’s approach apart from that adopted by many other universities. And of course what brought this suit on in the first place is the fact that GSU’s ORIGINAL policy was way out on the extreme, as Ken Crews himself admitted in his Chicago book on copyright policies at universities. For more details about all this, and a rebuttal to Crews’s own arguments, see my article on the GSU case in the February issue of Against the Grain.

  5. Kevin Smith says:

    I don’t think I am exaggerating at all, and Sandy resorts to an interesting rhetorical sleight of hand to make his argument. He starts by suggesting that I am wrong to assert that little fair use for course readings would be left if the publishers are successful, but supports that claim only by asserting that the defendants past conduct was not fair. He never actually tells us what fair use in this situation would look like, and he does not dispute the fact that the plaintiff’s suggested standards for fair use — transformational uses and the classroom copying guidelines — would not leave much room at all. Is 1,000 words really the outer limit of fair use, Sandy?

    Just like the plaintiff publishers, Sandy wants this case decided on past conduct, or, at least, on the “we know they will do it again” standard. Fortunately for all, rules of evidence exist, and the judge has applied them here based on the posture from which the plaintiffs chose to file suit. It is worth noting that the defendants brief asserts that the publishers consistently exaggerate the amounts used on reserve for the past three semesters, the only ones that are still at issue.

    As for the checklist, it is hard for me to imagine how a checklist, by definition, would be used other than in the way Sandy dislikes, regardless of how we explain it. He and the plaintiffs are asserting a distinction without any real difference, and in the process pulling the rug out from under those of us who relied on previous settlements and statements from the publishers.

    All of this seems intended to keep the academic community calm — “relax, we are only after the really bad actors, not you guys” –while “academic” publishers attempt to reach deep into university budgets or, as the plaintiffs suggest, new student fees, to extract a massive new income stream.

  6. [...] Smith has posted an excellent explanation of the issue in his Scholarly Communications blog, “Summary judgment in the GSU case?” (Scholarly Communications Duke, March 9, 2010). Library Journal has also covered this issue [...]

  7. John Doe says:

    Gutting fair use would harshly affect the way materials are covered in class. It would, as Smith says, another way for private enterprise to make money from the education system. That would have made Milton Friedman happy, but for students who are struggling to pay for college education, for instance, that happiness would be directed one way only: for the publishers. While using very large portions of one source is not fair use, to try to remove one of the best ways to promote discussion and debate in the education system is antithetical to the purpose of developing a learned, conscious citizen of the state and country. Shame on the publishers for this tactic.

  8. [...] infringement context because of the inherently subjective nature of the inquiry.”  I made this argument several weeks ago in suggesting that summary judgment on the fair use issue was inappropriate in [...]

  9. [...] altogether and win your case outright on the basis of the motions and evidence submitted.  I had already said that I thought neither side would succeed at that level, and I was right.  But I have to admit to [...]