As most everyone knows by now, the decision in the appeal of the Georgia State ereserves case is out. The district court opinion found that Georgia State’s program was a fair use and ordered the plaintiffs (Oxford University Press, Cambridge University Press, and Sage Publishing, acting as “beards” for the Copyright Clearance Center and the Association of American Publishers, which are funding the litigation) to pay the university’s legal bill of almost $3 million. The plaintiffs appealed, and the Circuit Court has now thrown out the earlier decision (but without finding that Georgia State had infringed).
If you want to know more about the nuances of the decision, I heartily recommend Nancy Sims’s excellent analysis on her Copyright Librarian site. Look, too, for a promised upcoming analysis from Kevin Smith that will temper his initial assessment that the decision “looks like a considerable victory for the publishers” and instead concludes that the publishers lost everything that really mattered to them (oops – just published at http://blogs.library.duke.edu/scholcomm/2014/10/19/gsu-appeal-ruling-read-better-seems/).
As far as Cornell is concerned, the new decision is entirely in line with Cornell practices, especially the Cornell Electronic Course Content Copyright Guidelines and Fair Use Checklist. All recognize that some uses of copyrighted material in teaching can be fair uses. And all eschew rigid amounts or percentages in favor of a more flexible fair use analysis. In some cases, using less than a chapter might be fair (especially if that is all that is needed for the pedagogical purpose), whereas in other cases more than one chapter might be acceptable. One needs, for example, to take into account the nature of the work (fiction or factual and, if factual, the amount of creative analysis in the work) as well as the availability of any digital license to use an excerpt. We often hear calls for a “bright line” fair use test, but the Circuit Court’s decision mirrors Cornell’s approach that the faculty member’s assessment of whether a particular use is fair will vary according to specific circumstances.
A decision in the 11th Circuit is not binding on courts in New York. But it is still reassuring to note that at least one Appellate Court views educational fair use in a similar manner to Cornell.
What is next for this case? It now goes back to Judge Evans, who has to reconsider the alleged infringement in light of the Circuit Court’s findings. Many commentators believe that Judge Evans may again find that Georgia State’s use of the material was fair, especially since the Circuit Court approved of much of her analysis. It could then be appealed again to the Circuit Court. Some commentators are suggesting that in light of the huge amounts of money already spent on this case and the publisher’s inability to get the appeals court to endorse its arguments, a settlement is likely. I am not so confident, given the fact that libraries are indirectly funding much of the litigation through their payments to the CCC. I hope I am wrong.
While the litigation may be back near square one, the whole saga should be one more reminder of how badly educational publishing is broken. The three plaintiffs – Oxford, Cambridge, and Sage – are proving themselves to be no friends of higher education. If authors wish to have their writings used in courses, they had best negotiate either better terms or look for a different publisher. And librarians should consider whether they want to support litigation and faculty members and universities by purchasing titles from these publishers and by paying permission fees to CCC.