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The Georgia State University Copyright Case

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Georgia State University logo.

This article was written by Scholarly Communication and Publishing Graduate Assistant Treasa Bane and Copyright Librarian Sara Benson.

Introduction

The ruling in the Georgia State University copyright case will have ramifications for rights holders and library users across the United States. If libraries have the most gain, libraries will have more guidance in making fair use decisions—at least with respect to online course reserves. But, if publishers have the most gain, they will gain more control, and annual academic licenses from the CCC will become more important and costly. However, making any sort of correlation or conclusion has proven to be difficult in this case, which has been alive for nine years strong.

History of the Case

In April 2008, Cambridge University Press, SAGE Publications, and Oxford University Press filed suit against Georgia State University (GSU) for “pervasive, flagrant and ongoing unauthorized distribution of copyrighted materials” through the library’s e-reserve system (Smith 2014, 73). When a drafted federal court complaint letter regarding uncontrolled digital copying was sent to about a dozen institutions indicating the complaint would be filed unless they contacted lawyers representing the Association of American Publishers, several institutions complied by adopting policies at the faculty senate level, but GSU did not (73). GSU said the excerpts were short and were not substitutes for textbooks; this practice was fair use. Publishers had a problem with this, saying large numbers of readings reproduced in a systematic way was not fair use.

On May 11, 2012, Judge Evans at the District Court found copyright violations in only 5 of 99 excerpts, finding that the university’s policy was a good faith interpretation of fair use (Smith 2014, 80). Judge Evans rejected the 1976 guidelines for classroom copyright; she introduced an amount of work that is “decidedly small” (79). And then on August 10, 2012, Evans rejected the plaintiffs/publishers’ severe injunction, requiring them to pay GSU’s attorney fees, which were over 2.9 million (81). The publishers were not pleased. They appealed the District Court of Northern Georgia’s ruling to the Eleventh Circuit Court of Appeals, and on October 17, 2014, the Eleventh Circuit Court of Appeals reversed and remanded the District Court’s decision in favor of the publishers (81).

On March 31, 2016, the Judge Evans reanalyzed the allegedly infringing works according to the directions of the 11th Circuit Court of Appeals and found 4 cases of infringement among 48 works, designating Georgia State the prevailing party (Smith 2014, 89). The publishers filed again in order to collect evidence about GSU’s practices because they need to know the most current conduct at GSU when dealing with the four infringements. This time, Evans estimated the weights of the four factors. Factor one, the purpose and character of the use: 25%. Factor two, the nature of the copyrighted work: 5%. Factor three, the amount or substantiality of the portion used: 30%. Factor four, the effect of the use on the potential market: 40% (2016). Evans pointed out that there was no case for copyright infringement because the publishers could not show they held the copyright, and there was no evidence that any students had used the excerpts. Another finding was that GSU’s e-reserve service was a fair use of copyrighted material purchased by its library; it was modeled on a broad consensus of best practices among academic libraries.

But the fight continued! On August 26, 2016, the plaintiffs filed a Notice of Appeal, which has been granted. Because of this, the Court of Appeals must to return to the fair use analysis for the 48 infringement claims. John Challice, Oxford University Press and Vice President and Publisher for Higher Education was quoted in “Georgia State is Going Head to Head with the Country’s Top Publishers” and summarized the desires of publishers:

We want Georgia State University (and any university that seeks to emulate Georgia State University) to change their checklist to something reasonable and legal. … We want to make it really clear to our marketplace, which are academic institutions in the US in this case, that there is no difference between copyrighted content made available in digital format or that made available printed on paper when it comes to licensing it.

More recent analysis has given factor four additional weight and factor two less weight. In instances where permissions were available and not paid, factor four strongly disfavored fair use. In cases when factors one and two favored GSU and three and four favored the publishers, a tie was created, and the court then considered the evidence of damage to the market. As a result, an overwhelming number of the cases found factor two to be neutral or in disfavor of fair use. Factor three and four were also disfavored several times. At least 4 excerpts did not favor fair use overall; however, at least 19 did favor fair use, the majority of which favored factor one, then factor four, and then factor three (2016).

Critical Points and Predictions

In order to stay relevant and maintain the same monetary expectations they had with print materials, publishers are damaging their relationship with libraries. This leaves librarians no choice but to seek other alternatives, such as open educational resources and library publishing. But more importantly, as long as librarians practice fair use, they will not lose it. Fair use is a right.

This case, which is now referred to as Cambridge University Press et al. v. Patton and Cambridge University Press et al. v. Becker (individual academics rather than GSU as a whole), will hold oral arguments through the 11th Circuit Court on July 27. As this date approaches, we should consider whether the demand for excerpts was so limited that repetitive unpaid copying would have been unlikely even if unpaid copying was a widespread practice. Additionally, we should consider whether the portion of the market captured by unpaid use was so small that it would not have had an effect on the author or publisher’s decision to produce work. Proving these will result in a stronger pull for fair use factor four and would therefore favor GSU’s academics and librarians, which would be a win for all educational institutions.

Sources

Cambridge University Press et al. v. Becker, Civil Action No. 1:08-CV-1425-ODE (U.S. Dist., March 2016).

“Georgia State is Going Head to Head with the Country’s Top Publishers.” The Signal. September 7, 2016. http://georgiastatesignal.com/georgia-state-going-head-head-countrys-top-publishers/

National Association of College and University Attorneys. Cambridge University Press w. Georgia State University: The 11th Circuit Ruling. Kevin L. Smith. October 2014: 87-91. Redacted from the Scholarly Communications @ Duke Blog.

National Association of College and University Attorneys. Georgia State University Copyright Lawsuit. Kevin L. Smith, J.D., MLS. 73-85.

Copyright Librarian Sara Benson’s YouTube Channel

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Copyright Librarian Sara Benson

Guest post written by Treasa Bane

Sara Benson—lawyer, librarian, and assistant professor—is UIUC’s secret weapon. Within the Scholarly Communications and Publishing department, she provides consultations, workshops, lectures, and guides concerning copyright. As research methods and means of accessing reliable information rapidly change, copyright grows more complex. Every institution needs an intermediary between information producers and consumers to reliably and accurately educate others about the ethical use of copyrighted materials, and UIUC has one: Sara Benson.

As a library science student, I’m aware of Sara’s vital role at our university, but most other UIUC students in other disciplines may not be. Combining the worlds of copyright and librarianship results in a set of service skills applicable for all disciplines that academics can and should use. A student should not struggle through the process of building his or her ideas for a project, nor should new professors and researchers get all the way to the stage of publishing their work and not know how to negotiate a contract.

If you are an author, educator, researcher, student, or community member (Sara doesn’t close her doors to anyone not affiliated with UIUC), and you cannot find the time the attend one of Sara’s workshops or read one of her LibGuides in its entirety, but you’re overwhelmed with what you need to learn about navigating copyright, you should start with Sara’s YouTube Channel. Sara’s YouTube channel is an excellent supplement to her services and is an introduction to what she offers UIUC.

Warning: Sara’s videos might make you more interested in law-related material than expected. Sara’s videos are instructional, digestible, and engaging and conversational. While your understanding of copyright increases, you will not find yourself bored by legalese. Her first video on her YouTube channel defines copyright and the requirements in order to own it, the rights attached to it, and then how those rights are protected while also making a work available. While this particular video may be more appropriate for students and beginners, new authors might also want to review what rights apply to their work.

As someone who attended her fair use workshop, I found that her ten-minute Fair Use video manages to cover the most important aspects of Fair Use about as well as a full-length workshop. The “Do You Know Your Fair Use Rights?” video demonstrates how to weigh the four factors of fair use—for example, the more commercial a project is, the less likely it is to be in fair use, but the more educational it is, the more likely it is to be in fair use. To demonstrate transformative use, she explains the differences between parody and satire—an important and also complicated factor to determine in court cases. In the end, she summarizes her most important point that fair use is a right. Even if you ask for permission to use something and your request is declined, you can still use it if it’s sufficiently transformative—whether it’s for commercial use or you make copies or you use an entire work. Again, the nice thing about Sara’s guides are that they apply to anyone, but her fellow librarians might find this a particularly succinct resource to use or point to when advising patrons.

Her “1923-1978 and public domain” video navigates the copyright challenges brought on during this period, which entails how the copyright symbol was used, giving reasonable notice of copyright protection, and registration and renewal at the copyright office. Not only does she chart what’s in the public domain herself based on these criteria, but she directs you to cheat sheets and databases, such as the Stanford Copyright Renewal Database, and shows you how to navigate within and between them. She ends by pointing to one of her LibGuides called Copyright Reference Guide.

Ethical practice plays a huge role when you’re producing and sharing your work, whether it’s working with records, computer programs, publications, media, or chemical or biological materials. Check out Sara’s YouTube Channel—while new, she’s quickly adding videos—or reach out to Sara herself in order to build your confidence by better understanding Creative Commons licensing, international markets, university policies, orphan works, the TEACH Act, patents, registered and unregistered copyright, and more.