On Friday the publishers who are suing Georgia State University for allegedly infringing copyright by scanning short excerpts from academic books to provide students with access through electronic reserves and learning management systems filed a petition for a rehearing by the entire Eleventh Circuit Court of Appeals. As most will recall, the panel of the Eleventh Circuit essentially did what the publishers wanted — reversal of the lower court judgment — but the appeals panel denied those plaintiffs most of the principles by which they hope to radically reshape copyright law. The publishers clearly understand that, whatever they can gain from additional lower court proceedings on remand, they will not get what they wanted when they brought the lawsuit. The panel ruled that the first fair use factor favors an educational, non-profit use even if the use is not transformative, that an item-by-item analysis is appropriate, and that it matters in the fair use analysis whether or not a license for digital excerpts is available. The publishers have decided they cannot live with these conclusions, so they have asked that those specific issues be reconsidered by the entire Eleventh Circuit court. Their “petition for en banc rehearing” lays out their arguments.
GSU also has filed a petition for rehearing. They are seeking some corrections to inaccurate statements about what list of alleged infringements was considered by the lower court, as well as a ruling that the risk of market harm from electronic reserves is a question of fact that the lower court should be instructed to consider. That risk, GSU argues, should be proved; it is not something the appeals panel should have presumed.
It is important to understand there is little chance that these petitions will be granted. When a case is appealed from the lower court to a Circuit Court of Appeals, we call that an “appeal as of right.” That is, that first appeal must be heard by an appellate panel. But thereafter, all subsequent appeals are discretionary; the court does not have to actually take the case, it has the option to deny the petition. Most people are familiar with the idea that the Supreme Court actually reviews only a tiny percentage of the cases for which it receives a petition for a hearing. Besides asking for Supreme Court review, the other option, after losing (or feeling like you lost) an appeal in front of a Circuit panel, is to ask that the entire group of judges in that Circuit reconsider the case. Like Supreme Court petitions, these petitions for en banc rehearing are rarely granted. In fact, the Federal Rules of Civil Procedure explicitly say that petitions for rehearing are “not favored and ordinarily will not be granted” (FRCP 35(a)). For more information about these post-appeal options, interested readers should see this article from the law firm Reed Smith.
So does the petition from the publishers stand a chance? There are two reasons a petition for rehearing might be granted: when there is a split within the courts of the Circuit or when a “question of extraordinary importance” is involved. In their petition, the publishers rely on the latter claim, but it is not very convincing. They try to drum up controversy by suggesting that the panel ruling contradicts some Supreme Court precedents, but, again, the effort is weak. The petition relies on the 1980’s decision in Harper and Row v. Nation Magazine, which the Supremes themselves have seriously modified in later rulings. So when the publishers object that the panel ignored Harper‘s emphasis on the importance of the fourth factor, they are deliberately ignoring language from the later Campbell v. Acuff-Rose case.
The other source that the publisher petition puts a lot of weight on is the “special concurrence” by Judge Roger Vinson. Essentially, Judge Vinson dissented on every major point in the majority opinion, but concurred in the result. Taken together, the two opinions indicate that a lot of negotiation took place in the 11 months it took to produce the ruling. It suggests, in fact, that the other two panel judges — Tjoflat and Marcus — were actually more sympathetic to fair use than is expressed in the majority opinion. But what is important about the heavy reliance on Judge Vinson in the petition for rehearing is the fact that Judge Vinson is not a regular member of the Eleventh Circuit. He is a senior judge at the District Court level (in Florida) who was on the Appeals Court panel to fill a vacant seat (called “sitting by designation”). That means that he presumably will have no role in deciding whether or not to grant the petition, or in any actual rehearing, in the unlikely event the petition is granted. So the publishers have found a friend in Judge Vinson, but he is not a friend who can help them all that much.
This petition for rehearing is thus a long shot, and it reveals the stark opposition of these three publishers to fair use as it has traditionally been interpreted throughout the long history of U.S. copyright law. Let’s look at the three principles the publishers say that they want and that the appeals panel got wrong.
The first point from the panel decision that the publishers say is wrong involves the idea of “media-neutrality.” This is a huge red-herring that the publishes have been waving around to distract the various courts from the weakness of their case, and they lead off with it in the rehearing petition. Judge Vinson was convinced by this argument that if courts do not treat electronic reserves the same way print course packs were treated in the “copyshop” cases from the 1990s, they are violating a principle of media-neutrality. The majority opinion, on the other hand, tried to define the limited role that media neutrality has in copyright law, a definition the new petition claims was an error. There are a couple of important points that are getting overlooked in this discussion.
For one thing, there are many ways in which copyright is not media neutral. Many exceptions, for example, refer to specific media and specific technologies. There is a provision just related to royalties on digital audio recording machines, for example. The TEACH Act refers to transmission over a digital network, and is inapplicable to other types of distance learning. Broadcast television is treated differently than cable, and terrestrial radio differently than Internet radio. Since the law is therefore often media-specific, it was not irrational for the panel majority to try to define what media neutrality does, and does not, mean. The publishers want it to mean something very specific in order to benefit their case, but the panel looked at a principle-based definition that took account of how the copyright law as a whole really works, and rejected the publishers’ ad hoc claim.
The reason for pushing this broad and self-serving definition of media-neutrality, of course, is to convince courts that the “course pack” cases are good analogies for electronic reserves. Since those cases found against fair use, the publishers’ argument goes, the principle of media neutrality demands that fair use also be rejected for electronic reserves. But, in fact, neither the lower court nor the appellate panel has rejected the course pack cases because of a perceived difference between electronic and print fair use. This is just sand being thrown in the face of the courts to confuse them (it worked with Judge Vinson). The course pack cases are distinguishable instead on first factor grounds that have nothing to do with the media involved; those cases involved a commercial intermediary making and selling the course packs, which is an entirely different situation than is reflected in the GSU case.
The second claim the publishers make in their petition attempts to undermine the first fair use factor more directly by asserting that it should not favor non-profit educational uses unless they are transformative. Although the publishers assert that this is the meaning of the Supreme Court’s ruling in Campbell v. Acuff-Rose Music, that is simply not true. Although that case laid great weight on transformation for many fair use decisions, it explicitly stated that not all fair use must be transformative, and cited “multiple copies for classroom use” as the paradigmatic case of a non-transformative use that is likely still fair. They get this phrase directly from section 107, of course. So the publishers are asking for a pretty radical reconfiguration of the copyright law here, that would directly defy the Supreme Court and the text of the law. It would be pretty audacious of the Eleventh Circuit to accept this argument, but the publishers are clearly going all in with their fight against fair use. It seems they are reasoning that if they can persuade the Eleventh Circuit into accepting this radical new view of copyright, they could at least get a shot at Supreme Court review by provoking a split in the circuits where none has previously existed.
Finally, the most troubling claim the publishers make is in their argument that the fourth fair use factor’s emphasis on market harm, including “potential” markets, gives them the right to decline to offer a license for digital excerpts without tipping the fourth factor toward favoring fair use. The appellate panel correctly noted that this argument would demolish fair use, since it would allow a rights holder to say “we could have licensed this use if we wanted to, so allowing fair use damages the potential market we have chosen not to enter.”
In one sense, I would like to see a discussion of this idea of potential markets. It should be seen as a gateway to consider the incentive purpose of copyright law. How would it create additional incentive for creation to permit publishers to refuse to license uses of academic works? These markets are not an end in themselves, but a vehicle to produce such incentives. Establishing a right to refuse to license does not serve this purpose at all. It is a selfish and antisocial argument put forward by the publishers to protect the artificial scarcity that they believe they must create in order to make money. In short, the publishers want the right to limit access to knowledge because they do not have the vision needed to run successful businesses in a changing environment.
What do we lose if that argument is accepted? Only our most cherished democratic value, the freedom of expression. Fair use has always been considered a “safety valve” for free expression that prevents a rights holder from suppressing speech he or she doesn’t like by asserting copyright. If we were to accept this potential market argument, a rights holder would be a step closer to preventing scholarly commentary by denying a license for the quotations used in, for example, a review (as Stephen James Joyce famously tried to do regarding his grandfather’s work). That might seem extremely unlikely on a larger scale, but we should remember that publishers often require their authors to obtain permission for the use of quotations beyond an artificially imposed word limit. Combined with this idea that denial of a license should not improve the fair use argument, the conditions for such suppression would be ideal.
The truly shocking thing about this petition is how openly Oxford University Press, Cambridge University Press and Sage Publishing are now attacking free speech and the dissemination of knowledge. These are not “academic” presses anymore; their profit motive and shorted-sighted focus on protecting old business models has led them to assume an anti-academic stance that the scholarly community should not tolerate. They are demanding nothing less than a right to suppress and inhibit the spread of knowledge, simply by refusing to offer a license, whenever the believe that doing so is to their commercial advantage. I have often been asked if I think scholars, libraries, and others should boycott these publishers because of the lawsuit, and I have always said that we should wait and see where the cases goes. To me, it has now gone in an intolerable direction, one that threatens core principles of academic discourse. Everyone must make their own decision, of course, but I am now willing to say that I will neither publish with these three plaintiff publishers nor buy their products. They have declared war on teaching and the dissemination of scholarship, and I will not help them buy the ammunition.