In a May 30, 2011 Chronicle of Higher Education article, “What’s at Stake in the Georgia State Copyright Case?”, set the stage for a potentially landmark copyright case that focused on fair use in the context of higher education’s user of e-reserves, and by association, course management systems. A clip from the above article best describes the core issues involved:
At issue before the court is the practice of putting class readings on electronic reserve (and, by extension, on faculty Web sites). Cambridge, Oxford University Press, and SAGE Publications, with support from the Association of American Publishers and the Copyright Clearance Center, are suing four administrators at Georgia State University.
The article mentioned that there would be a decision in several weeks but it extended into a year-long deliberation by the judge, Orinda Evans. Her final 350 page ruling (pdf) is posted courtesy of Nancy Sims‘ at the University of Minnesota if you want to read the full document. Jenny Howard followed up on the case in the Chronicle of Higher Ed Long Awaited Ruling on May 13, 2012. Up to this point, there was very little information about these specific kinds of uses online (e-reserves, course reserves) and now the community can interact with some of these points that were more ambiguous. The Association of Research Libraries put together an excellent issue brief of the Georgia State case (pdf) and a clear exposition of these points on May 15. For a good review of the background of this case, starting in 2008, see Hoffelder’s May 13 post.
James Grimmelman, a New York University Law Professor, summarized the implications this way on his blog, Laboratorium:
Thus, the operational bottom line for universities is that it’s likely to be fair use to assign less than 10% of a book, to assign larger portions of a book that is not available for digital licensing, or to assign larger portions of a book that is available for digital licensing but doesn’t make significant revenues through licensing
Kevin Smith in his Scholarly Communications @ Duke Blog has a helpful legal and educational analysis of the Judge’s decision and its implications for fair use. The findings (which are still subject to appeal and plaintiff creation of injunctions based on this ruling) include mostly encouraging and some frustrating news for libraries and higher education institutions. Here are some of Smith’s key points:
1. It is more likely that items can be used more than one semester if fair use applied in the first one.
Limiting the claim of fair use for an item for more than one semester or the “Subsequent Semester” rule is “an impractical, unnecessary limitation” (p. 71) according to Judge Evans.
2. Of the 99 claims made by the publishers, 95% were dismissed.
3. Revenue for permissions does not significantly impact the market value of the publishers content.
This is helpful for claims regarding the Fourth Fair Use Factor – Impact on market value.
1. She chose 10% or one chapter as the allowable portion of a work to claim Fair Use.
This is much less flexible than the language of the original copyright law would allow.
2. it “heavily favors” the plaintiffs IF a license for the appropriate format is readily available at a reasonable price.