Note to readers — a commenter has correctly pointed out that I was a bit over-enthusiastic in this post. It is not strictly true that no infringement has been found in any of the cases against libraries. In the Georgia State case the Judge did find five instances of infringement among the seventy-five digital excerpts that were challenged. But the Judge also held that the University’s fair use policy was a good faith effort to comply with the law and, for the purpose of awarding costs and attorneys’ fees, determined that GSU was “the prevailing party.” GSU was simply ordered to revise its policy to reflect places where the Judge felt it had not adequately defined fair use. To be adequately cautious, however, my comments at the end of the first paragraph and of the full post should have said that fair use has been an effective tool for academic libraries that has been upheld in each case and has prevented any significant liability.
We knew some time ago that the second complaint filed in the copyright infringement case brought against UCLA by the the trade association AIME over streamed digital video had been dismissed. But last week Judge Consuelo Marshall filed her order that explained the grounds of that dismissal. What we have learned is that this case is a slight victory for fair use in libraries. On the specific issue we do not have clear guidance, just an affirmation that fair use arguments for streamed digital video are not unreasonable or obviously wrong. But it is helpful to see this ruling as part of an overall picture, one in which all three cases claiming copyright infringement by academic libraries which were defended on the basis of fair use have now been decided at the trial court level and NO INFRINGEMENT HAS BEEN FOUND.
In the AIME v. UCLA case, the reasons for the dismissal are primarily that the plaintiffs lacked standing — the legal right to seek judicial redress of a claim — and that the defendants have either sovereign immunity or qualified immunity based on their status as state officials performing their jobs. A lot of the interest in the ruling is in the part that discusses qualified immunity, because that holding involved deciding whether or not a reasonable person in the position of the official charged would have know that his or her actions would be “clear violations of established copyright law.”
As for the standing issue, the Court says pretty much the same thing I said at the time the second complaint was filed — the plaintiffs have not shown any facts that make this complaint different from their first one, which was dismissed earlier. These plaintiffs simply are not the right people to bring this case, and the folks who would be in a position to claim copyright infringement have not stepped forward to support the complaint. Perhaps those other parties understood the risk that there would be another positive ruling for fair use, and did not want to take the chance.
But as I say, the real action is on the issue of qualified immunity, where a plaintiff must prove, to overcome such immunity, that the defendants either knew or reasonably should have known that they were infringing copyright law. In the light of what the Judge calls the “ambiguity” of the fair use issue, she declines to so rule, and hence dismisses the complaint against these defendants (including library and IT staff) because of their qualified immunity.
Judge Marshall’s fair use analysis is very cursory, but still quite interesting. On the first factor, the purpose of the use, the Judge simply states that it favors fair use, presumably because the use is educational and non-profit. This is no surprise. On the second factor, the Judge rec0ognizes that the works involved, performances of Shakespeare plays, are creative, but also that they are being used in an educational context. She finds this factor to be neutral. As to amount, Judge Marshall thinks this factor weights “slightly” against fair use — the entire films are being streamed, of course, but she finds “compelling” the argument that this streaming is analogous to the “time shifting” upheld by the Supreme Court as fair use in the Sony video recorder case. Finally, as to the impact on the market factor, the Judge says this factor FAVORS fair use because there is no difference in a streaming situation as to market harm than would be the case in the clearly permitted situation where a classroom full of students watched an entire movie together. The recognition of this essential similarity as to market harm strikes me as fundamentally important.
So the Judge holds that “there is, at a minimum, ambiguity as to… fair use.” In fact, her analysis would be very likely to uphold fair use, but she does not need to reach such a ruling in order to find in favor of qualified immunity and dismiss the complaint. Judge Marshall then goes on to examine the licensing terms under which UCLA obtained these videos, to see if those terms state unambiguously that streaming is not allowed. Here too she finds ambiguity, and thus upholds qualified immunity regarding that assertion as well.
Legally, the bottom line in this case is that all of the claims are dismissed with prejudice, which means that they cannot be refiled, although, of course, the dismissal could be appealed, if AIME and Ambrose Video are inclined to waste even more money.
For libraries, I think there are several takeaways from this case:
1. The fair use issue as to streamed digital video was not decided. This is not a blanket authorization for schools to proceed with such projects; they still require careful thought and a local decision that balances the risk of copyright litigation with the pedagogical value of proceeding.
2. It is very important to look at licenses for the videos in question, where they exist. It seems clear that an unambiguous license would have overcome qualified immunity in this case.
3. The grounds for this dismissal apply only to the state officials involved; the same analysis would not apply to a private institution, although the fair use analysis, of course, could be raised by such a college or university.
4. Overall, the atmosphere for fair use on campus is a lot better today today than it was six months ago. We have seen a pretty convincing victory in the Georgia State e-reserves case, a sweeping one in the HathiTrust case, and a tepid affirmation of fair use (probably!) in this streamed video case. Although the first two of those cases are being appealed (we do not know if AIME will appeal this latest decision), we now know that courts are quite sympathetic to fair use by academic libraries and on college campuses. We know that most of the arguments that content providers have long offered to discourage reliance on fair use have been rejected. We know that no campus has yet been found guilty of infringement when it makes reasonable fair use of lawfully acquired materials for limited teaching purposes.
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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- Dave Fernig on Going all in on GSU
- Gretchen McCord on Going all in on GSU
- In Georgia State University E-Reserves Case, Eleventh Circuit Endorses Flexible Approach to Fair Use | ARL Policy Notes on GSU appeal ruling — the more I read, the better it seems
- Paul Callister on Swimming in muddy waters
- Jim Neal on Free speech, fair use, and affirmative defenses