To the surprise of no one, I think, the plaintiff publishers in the Georgia State litigation filed a notice of appeal on Monday. There has already been considerable coverage of this decision, in, for example, Inside Higher Ed, the Chronicle of Higher Education, and Library Journal.
The actual Notice of Appeal is a very dull document; it merely lists the orders from the District Court with which the publishers take exception, and “respectfully give[s] notice” of the intent to appeal. The real action yesterday was in the press releases, and there the publishers respect for the District Court was much less evident. Indeed, there is a good deal of anger, and some crocodile tears, in these public statements. The plaintiffs in this case have always shown more skill when crafting dramatic press releases than they have with persuasive legal arguments. It is worth looking at some of the statements from the public statements to assess, primarily, the legal arguments the publishers plan to make, and also their motivations.
First, the Association of American Publishers’ statement asserts that, “There is no legal basis for according less copyright protection to printed books and articles when portions are made available in digital form rather than bound into hard-copy coursepacks.” Of course, the District Court made no such differential treatment; it is their inability to see the distinction between the coursepack cases and the situation with library reserves that undermines much of the publishers’ thinking in this area. At least two cases have found that coursepacks printed for colleges and universities by commercial copy shops do not get much scope for fair use. But Judge Evans’ ruling that there is more scope for fair use when libraries or professors share digital excerpts has nothing to do with any difference in format; it is simply a recognition that the circumstances that the law tells us are relevant in a fair use determination are different in the two situations. With Georgia State there was no commercial entity making the copies and no charge leveled for access to them. None. That is a huge difference between GSU and the coursepack cases; it is directly, massively relevant to the first fair use factor, which disfavored the copyshops but favors Georgia State.
In other words, Judge Evans did not draw an impermissible distinction, as the plaintiffs allege. She simply did what the law tells her to do; she analyzed the specific circumstances around the challenged uses. She did it meticulously and arrived at reasoned conclusions based on the facts before her and the factors outlined in the law.
The AAP goes on to claim that the District Court ignored a “lengthy pattern and practice of widespread infringement” and “ignored the forest for the trees” by conducting its inquiry into each challenged excerpt. Again, this statement indicates a profound misapprehension of how fair use works. It is precisely intended to be a careful examination of the circumstances around each challenged use. And the results of that analysis disprove the claim of a lengthy and widespread pattern of infringement. Judge Evans found only occasional and scattered instances of infringement.
It is difficult to know how the plaintiff publishers think the Court should have proceeded differently. How do you discover a pattern of infringement if you don’t examine each specified use to see if it really is infringing? How do you locate a forest without knowing what a tree look like? To extend the metaphor, the publishers and the Court do not disagree about whether or not there is a forest, they disagree about what kind of trees make it up; where the publishers see infringing yew trees (a symbol of mourning and loss), the Judge saw, mostly, fair use oaks.
In the conference call with reporters that the plaintiff publishers held, reported in the Chronicle article above, there was a lot of talk about how unhappy the publishers are to have to continue their lawsuit against academic libraries. They professed an allegiance to the principle of fair use that I find extremely disingenuous — whatever they could mean by fair use in that statement, it is not recognizably the right created by section 107 of the U.S. copyright law — and they once again asserted that the District Court ruling would cripple them financially. The President of Oxford University Press is quoted as saying that the decision would “cut us off at the knees” because of their “razor thin budgets.” There are many public facts that disprove this statement, not least of which is the 25% increase in profits OUP reported in 2011 or the 116 million pound “surplus” it reported in 2012. More importantly, Judge Evans had access to specific sales and profit numbers, and found very clearly that permission income was almost never a significant factor for these publications. These factual findings of a District Court are reviewed on appeal under the standard that “clear error” must be found to overturn them, so this argument is a loser in court, I am convinced, even while it remains popular in press releases.
In short, what we saw on Monday was more of a tantrum than a legal argument. The Copyright Clearance Center has made it clear that they will continue to help fund this case on appeal (an appeal is a lot less expensive than the initial trial), so more money from libraries will be used to sue libraries. All the professions of regret and concern for authors still ring hollow; it is interesting that Sage claims to have consulted “textbook authors” about continuing the suit, yet no textbooks per se were involved in the case and it is not clear that the judge would apply the same analysis to textbooks as she did to the works at issue. If the publishers had spoken to the authors on my campus who write the books and articles they publish, I am confident they would have heard a different story. For ordinary academic authors, permission royalties are trivial and not an expected part of the publishing “deal” (which is no deal at all for them). This is not about protecting authors; it is, as it always has been, a marketing ploy, especially for the CCC, that aims to compel libraries to give an even larger share of their budgets to these publishers, and the groups that are financing them, without getting any new scholarship for that money.