The six million dollar fair use standard

The trial judge in the Georgia State copyright infringement lawsuit filed her final judgment in the case yesterday, bringing that portion of the lawsuit to a close.  The only news left for this final order was the amount of money that the plaintiff publishers would be forced to pay to Georgia State.  Judge Evans had already ruled that GSU was “the prevailing party” and therefore entitled to have the other side pay their fees and costs, and a lot of motions were filed arguing over what those numbers would be.  The final amount (including both attorney fees and court costs) is $2,947,085.10.

Based on the way these things usually turn out, Georgia State and its lawyers probably think this number is too low.  The publishers and their lawyers undoubtedly think it is too high.  The result is that it is probably a reasonable estimate of what it actually cost one side to litigate this case.  So if we want to estimate how much it cost to get us where we are today, that estimate would be about six million dollars, assuming that the plaintiffs spent approximately the same amount that they must now pay to the defendants.

And please do not forget; half of that money is coming from the Copyright Clearance Center, a corporation that says it acts on behalf of scholarly authors and to whom universities pay large sums of money.  Our own dollars — lots of them — are being used to bring this lawsuit to squeeze more dollars out of us.

The result of all this expenditure, thus far, has been a judgment that gives us what the publishers originally said they wanted.  The Judge has articulated a reasonable fair use standard.  It is too rigid for my taste, and too permissive for the publishers, but it is not unreasonable.  If it was left to stand, nothing much would change, except that we would have a greater degree of confidence if we confined our fair use assertions regarding the provision of digital course readings to the boundaries Judge Evans has set.  Doing that would cause some institutions to pay less for permission fees, and some to pay more.  Some schools might push the boundaries a little further, but we probably would not see the widely different interpretations of fair use in this context that we sometimes find today.  Other schools would still find that this risk is too great and continue to stay out of the e-reserve business all together.

To my mind this would not be a terrible result, although it would have cost a terrible amount of time and money to get there.  We could all probably live in a world where Judge Evans’ ruling was the last word in this case.

Unfortunately, the publishers are unwilling to live in such a world; they have already announced their intent to appeal, and they now have thirty days to file that appeal in the 11th Circuit Court of Appeals.  The only excuse for their decision is the desire to force universities to pay even more money than the already do to publishers.  Prices are not rising fast enough, apparently, so greater income from permissions is required.  If other parts of the educational mission of universities have to suffer, that too is price the publishers seem willing to pay.

We can no longer preserve the illusion that all this was about was to provide some certainty about fair use for digital course content.  The publishers spent 6 million and now could walk away with a workable, if unpopular, standard.  Instead the battle against universities and higher education will continue.  How sad.

7 thoughts on “The six million dollar fair use standard”

  1. When I served on the library committee at Portland State about 15 years ago I was shocked to learn how much publishers charged us to read the papers we and our colleagues wrote. Having also served on both P&T and hiring committees, I understand that individual academics must participate in the larceny to advance their careers.

    I suggest limiting P&T credit to open access publications.

  2. Great blog post, Kevin. Although I find myself wondering if the title isn’t some sort of reference to the old Lee Majors TV show. 🙂

  3. “Prices are not rising fast enough, apparently, so greater income from permissions is required.”

    Would you agree that a similar critique might be directed against universities themselves over skyrocketing tuition?

  4. I have grave concerns about a supposedly “non-profit” organization – the CCC – making so much profit that they can afford this expensive lawsuit and its appeal. The CCC was founded to serve the interests of both the publishers and those who use published content, or so we were told. Now, they tilt toward the publishers. This needs to stop.

  5. Great post, Kevin. Putting a price tag on the litigation really puts it into perspective. While doubling the fees and costs is a good start, I would not be surprised if the plaintiffs racked up even greater fees than the defendants in this case. Thoughts? Regardless, having an actual dollar amount is an eye opener.

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