The Eleventh Circuit Court of Appeals has issued its ruling in the publisher appeal of a district court decision that found most instances of electronic reserve copying at Georgia State to be fair use. The appellate court ruling is 129 pages long, and I will have much more to say after I read it carefully. But the hot news right now is that the Court of Appeals has reversed the District Court’s judgment and remanded the case back for proceedings consistent with the new opinion. The injunction issued by the District Court and the order awarding costs and attorney’s fees to GSU have been vacated.
Looking at its analysis of the four fair use factors suggests that applying the Court of Appeals’ ruling will be challenging. The panel has held that th=Judge Evans of the District Court was correct to find that the first factor favored fair use, even though, both courts say, the use is not transformative. The non-profit educational character of the use seems to carry the day on that factor. On the other hand, the Appeals Court finds error in the District Court’s sweeping finding that the second factor favored fair use. The panel also disagrees with the 10% or 1 chapter standard used by Judge Evans to decide about the third fair use factor, the amount used; they object to any mechanical standard and want a more nuanced, work-by-work analysis. The Court of Appeals also agrees with the District Court about the fourth factor — largely favoring plaintiffs when a digital license is available. But the 11th Circuit wants the factors to be balanced with a different touch; not treated as all equal.
What is interesting here is that it looks like a considerable victory for the publishers, but there is still a lot of work to do. Judge Evans will need to do her analysis over again, and the results will be different. But given the way the Appeals Court agrees with some parts of her initial analysis and corrects her on others, it is hard to predict, on first glance, what the final result will be.
A copy of the opinion can be found here. I am sure there will be lots more written about the, including by me, in the days to come.
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