Approximately a year ago, Judge Orinda Evans of the Federal District Court for Northern Georgia held that the electronic reserves practices of the library at Georgia State University (“GSU”) were, for the most part, fair use and not copyright infringement. While some were surprised by the liberal breadth of the court’s interpretation and application of the fair use doctrine, no one ought to have been surprised that the plaintiffs decided to appeal. The parties — and about a dozen amici — completed their appellate briefing last week.
College students used to purchase course packets (paper compilations of chapters from various academic texts) at copy shops. Judicial opinions in the 1990’s held that these copy shops must pay license fees to the authors whose copyrighted works are included in the course packets. However, schools are increasingly replacing these course packets with electronic versions of them, and in many cases avoiding the payment of these fees. GSU, for example, allows professors to select excerpts from academic texts and have the school library upload those selections to its “ERES” system, where they are available on-line for free to students in that professor’s class. When a GSU professor compiles her class materials the old-fashioned way, copy shops prepare course packets and pay a license fee to the author, which they pass on to the student in the course packet price. However, if the same professor decides to place the same materials on the ERES system, the students pay nothing.
In 2008, a group of academic publishers (Oxford University Press, Cambridge University Press and Sage Publications) brought suit against GSU, alleging that the school’s practices constituted illegal copyright infringement and were replacing the market for textbooks and authorized course packets.
Judge Evans’ Decision
In May 2012, Judge Evans issued a 350 page opinion, which includes 74 separate mini-opinions, one for each allegedly infringed work. She essentially held that, with a few exceptions, GSU’s practices constituted fair use because the copies were made for educational purposes. We have previously written about this decision in some detail.
The decision was in many ways an overwhelming victory for GSU. However, because there was a finding of some infringement by GSU, the court held that the publishers were entitled to injunctive relief. On August 10, 2012, the Court issued an injunction, requiring GSU to “maintain copyright policies . . . which are not inconsistent with” the court’s decision on fair use. On September 30, 2012, the court further found that, because GSU was in effect the “prevailing party,” it was entitled to $2.8 million in attorneys’ fees plus costs.
The 11th Circuit Appeal
The publishers have appealed Judge Evans’ decision to the 11th Circuit, focusing on the more controversial aspects of her application of the fair use doctrine. Specifically, the publishers advance the following arguments as grounds for the appeal:
The publishers argue that prior case law, which required payment of license fees for paper course packets, is directly on point. Those cases only differ from the present one in that (1) GSU’s copying is in a different medium – electronic instead of paper – and (2) GSU’s copying is done by the school itself instead of by a for-profit copy shop. The publishers argue that neither of those distinctions should substantially alter the fair use analysis.
Judge Evans held that the first fair use factor (“the purpose and character of the use”) weighed in favor of GSU because it is a “nonprofit educational institution.” The publishers argue that this “automatic” favoring of a nonprofit defendant on the first factor is improper, and ignores the undisputed fact that GSU’s copying was not transformative.
Judge Evans held that the second fair use factor (“the nature of the copyrighted work”) weighed in favor of GSU because the works were informational (i.e., nonfiction as opposed to fiction). The publishers argue that the Court has misapplied this factor and misinterpreted the fair use statute.
Judge Evans held that, by and large, the third fair use factor (“the amount and substantiality of the portion used”) weighed in favor of defendants because they took less than 10% of each copyrighted work and because they took no more than was necessary for the educational purpose. The publishers argue that Judge Evans’ 10% quantitative safe harbor has no basis in law. They also argue that Judge Evans’ ruling confuses the law applicable to parody (in which a parodist may copy no more than is necessary to criticize the copyrighted work) with the law applicable to wholesale non-transformative copying.
Judge Evans found in many cases that the fourth fair use factor (“the effect on the potential market”) favored the defendants because no digital license was available during the relevant period. The publishers argue that the judge has misapplied this factor by failing to consider evidence that free electronic reserves are replacing the market for course packets and custom textbooks.
The publishers are also appealing the scope of the injunction, which they argue was too narrow, and the award of attorneys’ fees. Oral argument has not yet been scheduled.