GSU Scores a Victory for Academic Fair Use in Landmark Copyright Case

by Ballard Spahr LLP
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In a landmark decision on the nature of copyright law in the digital age, a federal judge in Atlanta has ruled in favor of officials at Georgia State University on nearly all the copyright infringement claims lodged by a trio of textbook publishers.

For the vast majority of claims, the judge concluded that the “fair use” doctrine protected the GSU professor’s decision to allow students to access excerpts of textbooks online through Georgia State’s Electronic Reserves System.

Universities and colleges across the country will be studying the ruling in Cambridge University Press, et al. v. Mark Becker because it is the first in-depth analysis of how copyright laws will apply in the digital age in the context of higher education.

Ballard Spahr attorney Katrina M. Quicker, an intellectual property partner, was co-lead counsel for GSU in the 15-day trial, assisted by Ballard Spahr associate Richard W. Miller.

At issue in the case was whether GSU officials violated copyright law by allowing professors to provide students with free electronic access to selected portions of certain textbooks. GSU’s copyright policy required the professor to conduct a fair use analysis by utilizing a “fair use checklist” that assisted the professor in determining whether the use would be a fair use, or whether permission—and the payment of royalties—would be required.

The publishers alleged that GSU’s practices amounted to “massive” copyright infringements and sought a permanent injunction that would have effectively prevented the placement of excerpts of copyrighted works on electronic reserve without paying a fee in advance. While the publishers asserted hundreds of infringement claims when the case began in 2008, they abandoned all but 99 before trial and ultimately pursued just 74 claims in post-trial briefing.

The trial before U.S. District Judge Orinda D. Evans focused on whether GSU’s copyright policy was effective in preventing copyright violations.

Judge Evans found that university officials “tried to comply with the Copyright Act,” but that the policy had led to five instances of copyright violations. “The truth is that fair use principles are notoriously difficult to apply,” Judge Evans wrote.

In her 350-page opinion, Judge Evans rejected 69 of the 74 claims that were put on trial. For 20 of the 23 professors whose use of the Electronic Reserves was at issue, the judge concluded that the professors made a “fair use” of the publishers’ works because GSU offered free access to just a small percentage of the book to further a purely educational mission and without any profit motive.

Applying a four-factor test, Judge Evans concluded that five instances of copyright infringement occurred. In each of the violations, Judge Evans found the publisher lost money because a professor had provided free electronic access to selected chapters in textbooks even though the publisher had created a way of selling licenses for those books on a per-chapter basis.

Ballard Spahr’s Intellectual Property Litigation Group is prepared to advise universities about how to modify existing fair use policies and train academic and library personnel to ensure that the policies are properly implemented. For more information, please contact Katrina M. Quicker at 678.420.9330 or quickerk@ballardspahr.com, or Richard W. Miller at 678.420.9340 or millerrw@ballardspahr.com.


 

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