Appeals Court Overturns Important Fair Use Win Concerning University 'E-Reserves' -- But Potentially For Good Reasons

A few years ago we wrote about an "obscure" but vitally important copyright/fair use case involving Georgia State University. The school was being sued by some publishers (though the lawsuit was financed by the Copyright Clearance Center -- a collection group that collects royalties on these sorts of things) because professors had put certain readings online for download by students as "e-reserves." The big question was how were such things viewed under copyright law. Did it hearken back to a series of lawsuits in the 1990s about "coursepacks" -- which were found to be infringing because they were reproduced by for-profit copy shops) or was it just traditional fair use. Remember, the actual law (17 USC 107) specifically says that "multiple copies for classroom use" is a form of fair use. More than two years ago, a ruling came out and it was massive. In 350 pages Judge Orinda Evans did a four factors fair use analysis on each and every work named in the lawsuit, eventually declaring the majority of them to be fair use (5 were found to be infringing, others were dumped for not having shown that the publishers held the copyright or for de minimis use). The whole ruling was mostly good, but still fairly messy, and had some weird made up rules in there, such as claiming that it's fair use if the reserve was less than 10% of the book. As we noted, the judge seemed to get "excessively formulaic" in making the fair use call. While that might be expected having to go through so many separate analyses, it's not how fair use is supposed to work. Now, the 11th Circuit Appeals court has basically overturned the ruling on fair use, in a ruling that comes in at only 129 pages. But the reasoning isn't that bad. It calls out the same problems that worried us when the original ruling came out. The main concern here is that Judge Evans "gave each of the four factors equal weight" when that's not how the factors are supposed to work. They're supposed to be the things that you look at before making a determination on the use as a whole. Furthermore, the appeals court seemed quite reasonably concerned about Judge Evans' formulaic conclusions. The court further rejects the publishers' misplaced argument about "media neutrality" as a reason why the e-reserves should be treated just like coursepacks. That's good. In the end, the appeals court looks at the four factors, claiming that the use is not "transformative" but that it doesn't really matter, because the use here is for education. There's an awful lot of "on the one hand/on the other hand" reasoning that almost makes it feel like the judges on the panel kept going back and forth until finally deciding when to stop flipping a coin. Where it finally lands, goes back to that whole "multiple copies for classroom use" tidbit in the damn law itself. And thus:

In sum, Congress devoted extensive effort to ensure that fair use would allow for educational copying under the proper circumstances and was sufficiently determined to achieve this goal that it amended the text of the statute at the eleventh hour in order to expressly state it. Furthermore, as described above, allowing latitude for educational fair use promotes the goals of copyright. Thus, we are persuaded that, despite the recent focus on transformativeness under the first factor, use for teaching purposes by a nonprofit, educational institution such as Defendants’ favors a finding of fair use under the first factor, despite the nontransformative nature of the use.

The court says the district court got the 2nd factor wrong (nature of the copyrighted work) by not really looking at each instance, but assuming they were all in favor of fair use. But also admits that the 2nd factor really isn't a big deal in this particular case (again getting at the mistake of trying to weigh all four factors evenly). The 3rd factor (amount of the work) calls out Judge Evans for that weird 10% formulaic calculation.

Here, the District Court found that the third factor favored fair use in instances where Defendants copied no more than 10 percent of a work, or one chapter in case of a book with ten or more chapters.... The District Court’s blanket 10 percent-or-one-chapter benchmark was improper. The fair use analysis must be performed on a case-bycase/ work-by-work basis. Campbell, 510 U.S. at 577, 114 S. Ct. at 1170; see supra discussion accompanying note 20. We must avoid “hard evidentiary presumption[s] . . . and ‘eschew[] a rigid, bright-line approach to fair use.’” Campbell, 510