Last week we saw the first real flurry of activity reported in the publisher appeal of the Georgia State University fair use victory. The news items and filings call our attention to both the legal and the political aspects of the appeal.
Starting with the law, over the weekend I gave the publishers’ Appellants Brief a preliminary examination, and want to highlight four points from that brief that the library community needs to be aware of and to know how to refute.
The most fundamental part of the publishers’ argument is the analogy between the practice of e-reserves at Georgia State and the cases that were decided in the 1990s regarding printed course packs. At trial, Judge Evans rejected this analogy for a good reason that the publishers largely ignore. They assert that the Judge impermissibly distinguished print from digital “course packs” and thereby violated the principle that copyright law requires “media neutrality.” It is quite true that courts often tell us that copyright should be technologically neutral, although that is by no means a hard and fast rule — the fact that there is a special provision in the law itself regarding Digital Audio Tape proves that Congress itself is not really dedicated to “media neutrality.”
But of course the real problem with this argument is that it entirely misses the point of the distinction Judge Evans drew. She simply did not decide to treat digital materials differently from print; she quite properly treated a non-commercial use differently from a commercial use in the fair use analysis. The publishers want to throw sand in the Appeals Court’s eyes here by distracting them from the correct fair use analysis, which looks at specific circumstances. In this case, there was no commercial intermediary for the e-reserves, but there was for the course packs involved in the cases the publishers cite. Fundamental difference in facts equals different result on fair use, and no error on the part of the trial judge. Instead, a persistent and probably willful failure to understand basic fair use law on the part of publishers.
A second argument that is key to the publishers’ brief is that only transformative uses can be fair use. Judge Evans specifically found that the e-reserves at GSU were not transformative, and that is a point that the Appeals Court should re-examine carefully. But even if that is affirmed on appeal, it does not rule out fair use. Again, a complete reading of Judge Evans’ ruling shows that she got the fair use point exactly right — a use does not have to be transformative in order to be fair use.
When the Supreme Court re-calibrated the fair use analysis to focus on transformativeness in Campbell v. Acuff-Rose Music, they made this point explicitly, noting in a footnote that some uses could be fair without being transformative. The publishers acknowledge that Judge Evans cited this footnote, but go on to argue, incredibly, that there is no justification for this contention in the statute, even though they recognize that the statue gives as one of its paradigmatic examples of fair use “multiple copies for classroom use.” They still argue that Judge Evans should have given great weight to the alleged non-transformativeness of the use, apparently feeling that Congress did not intend the plain sense of that language about multiple copies for classroom use, or that it somehow was only sanctioning transformative multiple copies for teaching (a contention that does not even make linguistic sense). It is absurd, but it shows how desperately hard it is to undermine the careful work Judge Evans did and how completely the publishers believe that the law is designed to serve their needs and only their needs.
Two other legal points before we turn to politics. First, the publishers insist strenuously on the 1000 word limit for classroom copying that comes from the 1976 Guidelines on that topic, and which Judge Evans rejected. They make no mention of the 10% standard from those guidelines, which the Judge did adopt, because the language of the Guidelines is “whichever is less.” It is precisely that language, of course, that makes the Guidelines “impractical and unnecessary,” as Judge Evans said, and why they were never agreed to by most higher education groups. Second, the plaintiff’s brief asserts that Judge Evans erred by approaching the analysis of market harm on a work-by-work basis. Instead she should have looked at the overall impact of these “digital Course packs” on publishers overall, and accepted, apparently, their analysis of market harm even though it was not borne out by the revenue figures they were forced to provide to her. This argument overlooks the best reason of all for evaluating market harm on a case-by-case basis, the fact that publishers and the Copyright Clearance Center do not make digital licenses available on a uniform basis. Each publisher takes a different approach and even within a publisher’s list there will be licensing differences for some works. Although the CCC is touted to the courts as a uniform licensing solution, libraries that use it, and even those few who use its blanket license, know that it is far from uniform. Since libraries must continue to do work-by-work analysis to obtain licenses, at vastly different prices and terms, and with uneven availability, the courts MUST look at fair use and market harm on a work-by-work basis.
Based on the weakness of the brief, I think the law still favors GSU. But politics is a different matter. Last week we learned that the United States government has asked for extra time to decide if it will intervene, and it has made clear that its intervention would either support the publishers or favor neither party. The one thing we know for sure is that the Obama administration has no intention of defending educational fair use. Why not? Probably because of the revolving door between the Copyright Office (and other administration advisers on IP) and industry. Most of the people who talk to the administration about IP policy have been either lawyers for the industry or lobbyists. Unfortunately, the educational community cannot view this administration, or most of its predecessors, for that matter, as impartial arbiters of fair policy on copyright matters.
It is still possible, and even likely, I think, that the Court of Appeals will largely uphold the lower court ruling on GSU. Judge Evans’ analysis was very careful, even fastidious, and there is is not much room to knock it down. The publishers’ brief wants to win on “big picture” issues unique to its business model, but we can hope that the Court of Appeals will understand that this is not what fair use is about. But even if they do, we are still left with an unfortunate situation, in which so much scholarly work, work created for a social benefit and usually with costs underwritten by taxpayers, is turned over gratis into the hands of commercial entities. And those entities have proven that they will not shrink from fundamental attacks on teaching and research in order to squeeze every penny they can from that work, money that comes time and again from the public. This is iniquitous for the public and for the scholarly authors, it is reaping what one does not sow, and it turns the purpose of copyright law on its head. But it is also business as usual for the commercial scholarly publishing business.
Last fall I had extended conversations with two senior executives from two of the plaintiff publishers in the GSU case. I came away from those conversations convinced that both men genuinely saw themselves as providing a benefit for scholarship. I do not doubt their sincerity, although the one who told me he could “live with” a 10% standard for e-reserve fair use obviously had little input on this brief, which jettisons 10% for a maximum of 1000 words. But they are wedded to a business model that was once necessary for scholarship and simply is not any longer, and their denial of that fact, and desperate defense of the businesses they run (which is only to be expected) now poses a threat to the educational mission of colleges and universities. The copyright in most of these works is owned by our faculty members, and it is well past time that we just refused to transfer those rights to commercial entities that undermine our best interests. Libraries and faculty senates must accelerate the pace at which they embrace new models — and non-profit older models — for the dissemination of scholarship. We know the change is coming, and actions such as those undertaken by these publishers as they continue to push the lawsuit against GSU, prove beyond doubt that we cannot wait much longer before scholars simply take their works and their rights out of commercial hands.