The best word to describe yesterday’s oral argument at the Eleventh Circuit Court of Appeals in regard to the appeal of the Georgia State University e-reserves decision is probably bizarre. But that has to be qualified; they were bizarre in a very discouraging direction for GSU and fair use in the academy.
When I read the briefs for this appeal, along with Judge Evan’s massive opinion from the trial in which she developed and applied a careful fair use analysis, it was hard for me to imagine how Georgia State could lose on appeal. The trial judge was right on both the law and the policy of copyright. But the oral arguments showed me that there was a way that it could happen — if the appellate judges got lost in the weeds and started chasing the argument down rabbit holes. It is worthwhile, if discouraging, to peek down some of these rabbit holes because they help illuminate some of the errors the appellate panel was laboring under.
Although the tenor of the arguments was mostly hostile to Georgia State, lawyers for both sides seemed bewildered by the direction of the questioning, and neither one was able to lay out a very persuasive argument. The day started badly for Bruce Rich, the lawyer for the publishers, when he was brusquely told to stop puffing about how important and civic-minded his clients were. He was immediately asked to defend the injunction his clients have sought from the court, specifically because it would impose a bright-line limit on fair use. The publishers want a definitive statement that 1000 words is the absolute maximum for fair use of their works, but the court was not buying it. On this issue they also gave Steve Schaetzel, representing GSU, a hard time about Judge Evans’ 10% or one chapter rule, asking if that “bright line” was a legal error (which would justify reversal or remand) because it removes the flexibility from fair use.
This is a difficult issue. It is hard to see how some standard for amount, the third fair use factor, cannot be used when examining a large group of excerpts used in the same way. So we have to ask what kind of order do the judges want; they seem to have painted themselves into a corner on the issue of amount. It seemed clear that they were not happy with the publishers’ proposed injunction, which was the good new of the day, but also possible that they would issue an injunction of their own, which would not be good at all. GSU made the plausible argument that the 10% standard was an analytic tool, not a bright line, which is supported by the fact that Judge Evans did not treat it as absolute, but flexed it a bit in light of the other factors. The judges did not seem to get that point.
Another “rabbit hole” was the issue of market harm. One of the judges, Judge Marcus, raised the question of whether Judge Evans had impermissibly “shifted the burden” on this factor by asking whether publishers offered digital licenses. The general rule is that defendants (GSU, in this case) have the burden of proving fair use, and lawyers and judges love to watch out for inappropriate burden shifting. Mr. Rich was quick to agree that this was an error made by Judge Evans, but of course it is no such thing. She simply ruled on this factor based on facts that were in the record before her. Specifically, the publishers argued that they were losing licensing income due to the claim of fair use, so she asked if they were offering licenses. When told that some of the plaintiffs (i.e. Cambridge University Press) were not, she properly concluded that this factor did not always favor the publishers. But, again, time was wasted pointlessly on this, and the error that Judge Marcus was making was never cleared up.
Then there was the analogy between course packs, and the so-called course pack cases, and electronic reserves. The publishers push this analogy very hard, and the judges seemed to mostly accept it. This may be the worst sign for GSU. Even when Judge Tjoflat acknowledged that he was using the language of course packs as a mere convenience, he seemed unable to get out of the way of its implications. Schaetzel did make the point, on behalf of GSU, that e-reserves were a lot more like a traditional reserve room than they are like course packs, but the panel persisted in its error. One difference between the GSU case and the course pack cases, of course, is the wholly non-commercial nature of e-reserves, whereas the course packs in those cases were made and sold by commercial entities. Also, a course pack creates a physical artifact that a student can keep forever, while an e-reserve reading is ephemeral, available only during the course and inexorably tied to the specific pedagogy. When the differences were pointed out to Judge Tjoflat, he merely switched to a hypothetical and plowed ahead, clearly trying to extract some kind of admission from Schaetzel even though that admission would be entirely irrelevant.
Perhaps the most bizarre moment in the arguments came at the very end, when Judge Marcus was pushing Schaetzel about the second fair use factor and Judge Evans’ conclusion that it favored GSU because the works in question were informational. The Judge seemed to lose track of the fair use analysis entirely when he posed what he clearly believed was a devastating question, asking Schaetzel if The Origin of the Species, one of the most important books in science, should lose copyright protection simply because it was factual. The confusion here is obvious. First, The Origin of the Species has already lost copyright protection and is in the public domain, yet science still advances. Second, all the factual nature of the book would mean, under Judge Evans’ analysis, is that the second factor of the fair use framework would be more likely to favor fair use; there is no question of “losing copyright protection” for Darwin’s book or for any of the works in the GSU e-reserves system. Finally, the very importance of The Origin of the Species is a reason why it should be subject to fair use; it is too central to modern thought to make access to it entirely dependent on paying some publisher a fee every time even the shortest excerpt of the book is used. That would be crippling to scientific education.
If Judge Marcus really wanted to use Darwin’s masterpiece to explore the second fair use factor, he should have asked Bruce Rich if he thought copyright protection was a major factor in Darwin’s decision to write the book. The incentives created by copyright, of course, seldom make any difference to academic or scientific authors, who write because it is part of the advancement of knowledge. It is comical to imagine Darwin, on board The Beagle, calculating royalties as he decides whether or not to share his insights about natural selection. It is precisely that disinterest in the economic rewards enabled by copyright that allows academic publishers to free-ride on the system and sell works that they obtain for nothing at great profit. The case brought against GSU is an extension of that free-riding, and a properly focused examination of the second fair use factor would have exposed it. Unfortunately, the arguments never went there.
So what can we expect next? It is always possible that the three judges will go back to their chambers, reread the briefs, and discover how off-the-wall their approach during the oral argument was. So a good ruling, presumably largely affirming Judge Evans, is not impossible. But it seems quite unlikely after yesterday. One alternative would be for the Appeals Court to remand the case, sending it back to Judge Evans for reconsideration in light of instructions they would provide. They could, for example, remand telling her to not use a bright-line 10% standard and not to “shift the burden” to publishers on the fourth factor. If they did that, it is perfectly possible that Judge Evans would go back to the record and arrive at the same result; she would just have to alter the language of her analysis a bit. Certainly if a more flexible standard for the amount used is employed, and pedagogical necessity is made the yardstick, Judge Evans might find even fewer infringements.
The more troubling possibility is that the Court of Appeals panel might reverse the lower court and issue an injunction. It seems clear that they would not be willing to endorse the sweeping injunction that the publishers have requested. They do not want to provide prospective instructions that would remove the flexibility from fair use. So the most likely thing, if they take this direction, is an injunction related only to the 48 excerpts analyzed in the original opinion, presumably using a different analysis and coming to different conclusions. Such an injunction would tell GSU how to deal with those works that were actually contested at trial and then, presumably, expect GSU to “get the message” as regards future assertions of fair use without dictating prospective standards.
Perhaps the most important message to come out of this day came from the panel discussion held at GSU after the arguments. Lisa Macklin, the Director of the Scholarly Communications Office at Emory University, who has a smart and sensible perspective on most issues, reminded us that the problem being fought over in this lawsuit would go away if the academy would more fully embrace open access. The core problem here is the donation of copyright in academic works to publishers who then exploit them to earn every possible penny of profit. Scholarship suffers due to the greed of these publishers (my words, not Lisa’s). So scholarship would be better served if we stop giving the key resource of the academy away to those who are poor stewards of it. Instead we need to have authors retain copyright and offer those authors a variety of ways to disseminate their work that better serve their needs and the interests of the scholarly enterprise.
Yesterday was a discouraging day, suggesting that storm clouds might be developing in the area of academic copyright. But if that storm breaks, the opportunity to renew and strengthen our commitment to open access might be the silver lining we can find in those clouds.
Note — this post was updated to correct the spelling of Judge Gerald Tjoflat’s name. Thanks to Kenny Crews for pointing the misspelling out.