Federal District Court’s Copyright Ruling Favors Georgia State University

by Franczek Radelet P.C.
Contact

[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.

Legal Framework

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.

Application

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.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.