[author: Ellen Wetmore]
In a case that has been closely watched through the higher education community, the U.S. District Court for the Northern District of Georgia held on May 11, 2012, that Georgia State University (GSU) was entitled to prevail in 94 out of 99 copyright infringement claims. Cambridge University Press, et. al. v. Becker et. al. In so ruling, the Court issued a 350-page opinion exhaustively analyzing the law of “fair use” and setting forth detailed guidelines for the evaluation of educational institutions’ copyright policies and practices.
The Cambridge case began when three publishers of academic books (Cambridge University Press, Oxford University Press, and Sage Publications) sued GSU, challenging various GSU professors’ posting of portions of the publishers’ books in e-reserves. The excerpts, all posted without permission from or payment to the publishers, were available for students to access as a part of their course materials. The publishers argued that GSU was liable for the alleged infringements because its copyright policy, which governed the posting of e-reserves, caused the infringement. GSU countered that the e-reserves were protected by the fair use doctrine of copyright law.
At the outset, the District Court articulated an analytical framework for determining whether GSU should be liable for copyright infringement as follows: for each alleged infringement, the Court would first determine whether the plaintiffs had made out a prima facie claim of copyright infringement. In order to do so, plaintiffs would need to show (1) ownership of the copyright in the work at issue; and (2) violation of one of their exclusive rights in the work (in this case, impermissible copying). If the plaintiffs established a claim for infringement, then the Court would determine whether GSU would be liable for a given claim by applying fair use doctrine as explained in the Copyright Act, 17 U.S.C. § 107, and the Supreme Court opinion Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
The Court explained how each of the four fair use factors would be applied to the infringement claims in the Cambridge case:
Purpose and character of the use
The Court explained that in each instance, the first factor would strongly favor GSU because “nonprofit educational purposes” are especially favored under the fair use portion of the Copyright Act. (The Court did not engage in a “transformational use” analysis under Campbell because copying for educational purposes is clearly protected.)
Nature of the copyrighted work
Under copyright law, a use is more likely to be fair when the work copied is informational in nature, rather than creative. In this case, every work at issue was informational – none, for example, were fictional – and therefore, the Court held that this factor would favor GSU in every instance.
Amount and substantiality of the portion used in relation to the copyrighted work as a whole
The Court found that this factor could favor either party, depending on the amount of the work used. The Court then determined that copying of an amount of no more than 10% (where the book contains fewer than ten chapters or is not divided into chapters) or no more than one chapter (where a book contains ten or more chapters) is permissible. The Court noted that copying within that limit would favor GSU, and copying above that limit would favor the plaintiffs. Significantly, the Court refused to base its evaluation on the “Classroom Guidelines,” a safe harbor for classroom copying published by Congress in 1976. The Court explained that the Classroom Guidelines constitute a floor, not a ceiling, for fair use; and furthermore, would be inappropriate to use as a point of reference in this matter because they are overly restrictive and outdated.
Effect of the use on the potential market for or value of the work
Again, the Court found that this factor could balance either way in the case of the challenged GSU uses. The outcome of factor four would depend on a number of considerations, including the financial harm to plaintiffs from lost sales or licensing revenues, and the availability of digital excerpt licenses that are accessible, reasonably priced, and in a reasonably convenient (digital) format.
The Court then proceeded to analyze each of the 75 remaining infringement claims. (At trial, there were 99 claims; however, the plaintiffs withdrew 25 and added one claim between trial and the filing of the Court’s opinion.)
For over one third of the claims, the Court held that the plaintiffs did not successfully establish a prima facie claim of copyright infringement. Plaintiffs were often unable to establish the first element, ownership. For numerous claims, the publishers could not produce a registration, assignment contract with the author, or other proof of ownership. These claims were dismissed without further analysis.
In other instances, the Court held that the publishers could not establish the second element of infringement (copying). The Court based these holdings on the principle that de minimis copying is not actionable under copyright law. In doing so, the Court espoused an unusual interpretation of the de minimis doctrine: typically, the de minimis doctrine is invoked only when the portion of the work copied is so small that it does not create a cause of action. In this case, however, the Court looked instead to whether any students actually accessed the excerpt. If not, the Court held that the plaintiffs failed to state a cause of action.
With respect to the remaining claims, the Court proceeded to conduct a fair use analysis using the framework detailed above. In each instance in which the copied excerpt fell within the Court’s 10% guideline, the use was ultimately found to be fair. Where the portion copied was greater than 10%, the outcome hinged on factor four.
In evaluating the fourth factor, the Court looked at the percentage of overall revenue for a title that plaintiffs made from permission fees, and balanced the publishers’ loss of revenue against the financial burden on individual students. The availability of digital licenses for a given excerpt was taken into consideration, but was not dispositive – although the publishers had offered digital licenses for the excerpts in question with respect to each of the five instances in which the Court found liability.
The Cambridge opinion is already being closely scrutinized and promises to be influential in the continuing dialogue about the parameters of fair use law. The decision provides useful guidance to educational institutions going forward advising them to assume that factor four will favor publishers, where digital excerpts are available. Therefore, as a practical matter, educational institutions may wish to examine their copyright policies to ensure that they limit copying to one chapter, or no more than 10% of a given book. If copying is limited to the permissible amount, three out of the four fair use factors will likely favor the institution and, absent other circumstances, help shield the institution from copyright infringement liability.