I wanted to provide an update on the Georgia State case as the appellate briefing was completed earlier this month.
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 expansive decision that for the most part favored libraries and a broad interpretation of the fair use doctrine. What was not surprising was the fact that the plaintiff publishers appealed the decision especially after being ordered to pay the defendants’ attorney fees and costs. The parties — and about a dozen amici — completed their appellate briefing last week including the Library Copyright Alliance (LCA).
As many of you are aware on 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. The decision was in many ways a substantial 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. There were some rulings on the part of Judge Evans such as those establishing a “bright line” rule of 10% for some works that pose concern but overall the decision was favorable. 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 publishers have appealed Judge Evans’ decision to the 11th Circuit Court of Appeals, focusing on the more controversial aspects of her application of the fair use doctrine. Specifically, the publishers make 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. Of course those prior cases involved a commercial use versus a non-profit use so not sure how persuasive such an argument will be.
- 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.
- It was 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 found 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% safe harbor has no basis in law – I actually agree with the publishers on this point – and I think that may be a basis for overturning the decision as fair use concept (at least the case law and statute has never place a defined limit on the amount that can be used – it is subject to a case-by-case analysis. 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.
- The Court 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.