Last Friday (May 11, 2012), Judge Evans of the Northern District of Georgia issued a long-awaited decision in the Georgia State e-reserves case entitled Cambridge Univ. Press v. Becker. At a hefty 350 pages, the decision will generate a great deal of analysis and interpretation over the coming days.
Judge Evans’ decision provides some guidance for institutions of higher education attempting to craft copyright policies and conduct fair use analyses, and holds that Georgia State University’s fair use defense failed in only five of the 99 instances of claimed infringement.
In 2008, three publishers (Cambridge University Press, Oxford University Press, and Sage Publications) sued members of Georgia State University alleging that the University’s e-reserves system – through which students could access electronic content posted by faculty – infringed copyrights held by the publishers.
In response, the University reviewed their existing copyright policies and drafted a new Copyright Policy that took effect in 2009 and which included a “fair use checklist” to help faculty and students understand and apply the fair use doctrine.
In February 2010, both sides filed summary judgment motions. The Court denied the publisher’s motion in full, but granted the University’s motion in part as to the claims of direct and vicarious infringement (leaving open the claim of contributory infringement). The Court also agreed with the University’s argument that only the infringement claims post-dating the 2009 Copyright Policy were relevant to publishers’ claims for injunctive and declaratory relief.
The publishers were then required to show that there was ongoing misuse of the fair use defense by the University despite the 2009 Copyright Policy. In March 2011, they introduced evidence detailing 99 alleged infringements (later reduced to 75 after trial). The trial began on May 17, 2011. At the close of the publishers’ case, the Court granted the University’s motion for judgment on the claim of contributory infringement, leaving only the claim that the 2009 Copyright Policy caused copyright infringement.
For the past year, both sides have awaited Judge Evans’ decision.
- Valid Copyright Not Proven
Judge Evans held that the publishers failed to establish that they owned a valid copyright in many of the 99 instances of claimed infringement. For example, for several of the works the publishers were unable to produce either a registration certificate or an assignment from the author to the publisher. The Court steadfastly refused to overlook the missing documentation.
- The Fair Use Defense
In the decision, Judge Evans conducted an extensive analysis of each of the four factors in the fair use analysis:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The Court immediately held that the first factor heavily weighs in favor of the University and that the second factor weighs in favor of the publishers (see below). Accordingly, the remainder of the decision hinged on the third and fourth fair use factors.
While discussing “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” Judge Evans largely dismissed the 1976 Classroom Guidelines, emphasizing that they “were not prepared by the legislators” and noting that the Guidelines’ numerical caps on how much of a work a teacher may copy under fair use “stands in contrast to the statutory scheme described in § 107.” Accordingly, whether the University adhered to the Guidelines was not dispositive to the fair use analysis.
In a portion of the decision that will undoubtedly be extensively analyzed over the coming weeks, the Court provided the following conclusions regarding the third fair use factor:
“Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three…In practical effect, this will allow copying of about one chapter or its equivalent. Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three. Excerpts which fall within these limits are decidedly small, and allowable as such under factor three. Access shall be limited only to the students who are enrolled in the course in question, and then only for the term of the course. Students must be reminded of the limitations of the copyright laws and must be prohibited by policy from distributing copies to others. The chapter or other excerpt must fill a demonstrated, legitimate purpose in the course curriculum and must be narrowly tailored to accomplish that purpose.”
Interestingly, the Court’s numerical cap of one chapter per ten-chapter books appears to be just as restrictive as the 1976 Classroom Guidelines that Judge Evans’ repudiated as being non-dispositive earlier in her decision.
- Individual Analysis of Each Instance of Claimed Infringement
Following a 247-page analysis of 75 instances of claimed infringement, the Court concluded that only five instances of copying were not fair use and thus constituted copyright infringement. For each instance the Court concluded that the instructor had copied more than a decidedly small amount of the book by making available more than one chapter of a book with more than ten chapters, and that the book made substantial revenues via licensing. For example, for one of the books the Court found copyright infringement even where the two full chapters represented only 37 pages and 3.01% of the total work.
- The 2009 Copyright Policy
Finding that unlicensed use of a total of 5 excerpts constituted copyright infringement, the Court next asked if the 2009 Copyright Policy caused those infringements. It did, Judge Evans found, because the policy did not do the following:
- it did not limit copying “to decidedly small excerpts” (per the new 10% or one-chapter rule set forth by the Court in this decision);
- it did not “proscribe the use of multiple chapters from the same book;” and
- it did not “provide sufficient guidance in determining the “actual or potential effect on the market or the value of the copyrighted work” (factor four of the fair use analysis).
Interestingly, according to the Court the “only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available).”
Although Judge Evans found that the University tried to comply with the Copyright Act by enacting the 2009 Copyright Policy, the University’s intent was irrelevant to the infringement analysis.
The parties will now brief the Court on injunctive and declaratory relief arising from the five instances of copyright infringement.
The Way Forward for Universities
The Court’s ruling may provide some guidance to institutions of higher education in similar circumstances who have adopted or are working to adopt copyright policies, although the impact of her decision remains to be seen. Specifically, Judge Evans came to the following conclusions regarding the fair use analysis:
- If the use is for teaching and research by a non-profit, the first fair use factor (the purpose and character of the use) weighs “heavily” in favor of the university;
- If the works are non-fiction and educational in nature, the second fair use factor (the nature of the copyrighted work) weighs in favor of the university;
- If the excerpt is less than 10%, or no more than one chapter of a book with more than ten chapters, then the third fair use factor (the amount and substantiality of the portion used in relation to the copyrighted work as a whole) weighs in favor of the university; and
- If a university can readily obtain a license in the appropriate format at a reasonable price, the fourth fair use factor (the effect of the use upon the potential market for or value of the copyrighted work) favors the publisher.
It should be noted, however, that the ruling will probably be appealed and thus is likely not the last word on the subject. Stay tuned to the Higher Education IP Law Report for the latest on this case and others like it.
For More Information:
Here are a few links for further analysis of the decision:
- “The GSU decision — not an easy road for anyone” by Kevin Smith at Duke University;
- “Inside the Georgia State Opinion” by James Grimmelmann of New York Law School; and
- “Some Leeway, Some Limits” at Inside Higher Ed.