Can this gulf be bridged?

Litigants in court cases often disagree sharply about the law and its application to the facts, so it is probably not a surprise that the briefs filed in the District Court’s re-examination of its ruling in the Georgia State copyright infringement trial should see the issues in such starkly different terms.

If you read the publishers’ brief, the 11th Circuit decision that sent the case back to the District Court changed everything, and every one of those 70 excerpts found to be fair use at trial now must be labeled infringement.  This is absurd, of course, and I don’t actually believe that the publishers expect, or even hope, to win the point.  They want a new ruling that they can appeal.  In my opinion the publisher strategy has now shifted from an effort to “win” the case, as they understand what winning would mean, to a determination to keep it going, in order to profit from ongoing uncertainty in the academic community (and, possibly, to spend so much money that GSU is forced to give up).

On the other hand, the brief from Georgia State, filed last Friday, argues that all 70 of those challenged excerpts are still fair use.  It seems likely that the actual outcome will be somewhere in the middle, and, to be fair to them, GSU does recognize this, by making a concession the publishers never make.  For a number of excerpts where a digital license was shown to be available at the time of the trial, GSU argues that the available licenses were not “reasonable” because they force students to pay based on what they are getting access to, whether or not the specific excerpt is ever actually used.  This is an interesting argument, tracking a long-standing complaint in academic libraries.  If the court accepts it, it would dramatically restructure the licensing market.  But GSU also seems to recognize that this is a stretch, and ends several of its analyses of specific excerpts by saying that the specific use “should be found to be fair if the Court finds the licensing scheme unreasonable, and unfair if the Court finds the licensing scheme reasonable.”  So it seems GSU is prepared for what I believe is the most likely outcome of this reconsideration on remand — a split between fair uses and ones that are not fair that is different than the original finding — probably with some more instances of infringement — but still a “split decision.”

The availability of licenses is one of the interesting issues in these briefs.  The publisher plaintiffs now argue that licenses were available, back in 2009, for those excerpts where the judge said no licenses were “reasonably available.”  They are continuing to try to introduce new evidence to this effect; which is something GSU vigorously opposes.  But those of us who have been involved in e-reserves for a while remember clearly that such licenses were not available at all through the CCC from Cambridge University Press and only occasionally from Oxford.  So what is this new evidence (which the publishers’ brief says was not offered before because they were so surprised that it was being requested)?  It is an  affidavit from a VP at the CCC, and my best guess is that it would argue that licenses were “reasonably available” because it was possible, through the CCC system, to send a direct request to the publisher in those instances where standard licenses for digital excerpts were not offered.  GSU argues that the evidence gathering phase of the case is over, a ruling about licenses has been made and affirmed by the Court of Appeals, and the issue settled.  A lot will depend on how Judge Evans views this issue; so far she has ruled against admitting new evidence.

Another controversy, about which I wrote before, involves whose incentive is at stake.  The Court of Appeals wrote a lengthy discussion of the incentive for authors to write, and its importance for the fundamental purpose of copyright.  To this they appended an odd sentence that says they are “primarily concerned… with [publisher’s] incentive to publish.”  The publishers, of course, hang a lot of weigh on this phrase, and take it out of context to do so.  GSU, on their side, make a rather forced argument intended to limit the impact of the sentence.  Neither side can admit what I believe is the truth here: that that one sentence was inserted into an opinion where it does not fit because doing so was a condition of the dissenting judge for keeping his opinion as a “special concurrence” rather than the dissent it really was.  If I am right, this compromise served the publishers well, since they can now cite the phrase from the actual opinion of the Court; it is seldom useful to cite a dissent, after all.  So the publishers quote this phrase repeatedly and use it to argue that all of the factors really collapse into the fourth factor, and that any impact at all, no matter how small, on their markets or potential markets effectively eliminates fair use.  Authors, and the reasons that academic authors write books and articles, do not appear in the publishers’ analysis, as, indeed, they could not if the argument for publisher hegemony over scholarship is to be maintained.

GSU, as we have already seen, takes a more balanced approach.  For the first factor, they discount the publishers’ attempt to make “market substitution” a touchstone even at that point in the analysis, and focus instead on the 11th Circuit’s affirmation that non-profit educational use favors fair use even when transformation is not found.  The GSU brief fleshes this out nicely by discussing the purpose of copyright in relationship to scholarship and teaching.  On the second factor, GSU discusses author incentives directly, which in my opinion is the core of the second factor, even though courts seldom recognize this.  GSU also points out that the publishers have ignored the 11th Circuit’s instruction, both here and in the third factor analysis, to apply a case-by-case inquiry to those factors; instead, the publishers assert that since every book contains some authorial opinion, the second factor always disfavors fair use, and that no amount is small enough to overcome the possibility of “market substitution.”  For their part, GSU introduces, albeit briefly, a discussion of the content of each excerpt (they are often surveys or summaries of research) for the discussion of factor two, and of the reason the specific amount was assigned, in regard to factor three.

As I said, these differences in approach lead to wildly different conclusions.  Consider these paragraphs by which each side sums up its fair use analysis for each of the excerpts at issue:

The publishers end nearly every discussion of a specific passage with these words — “On remand, the Court should find no fair use as to this work because: (1) factor one favors fair use only slightly given the nontransformativeness of the use; (2) factor two favors Plaintiffs, given the evaluative/analytical nature of the material copied; (3) factor three favors Plaintiffs because even assuming narrow tailoring to Professor _____________’s pedagogical purpose, it is counterbalanced by the threat of market substitution, especially in light of the repeated use; and (4) factor four “strongly favors Plaintiffs,” and is entitled to “relatively great weight,” which tips the balance as to this work decidedly against fair use. ”

On the other side, GSU closes many discussions (although there is more diversity in their analysis and their summations than in the publishers’) this way — “Given the teaching purpose of the use, the nature of the work and the decidedly small amount used, the fact that this use did not supplant sales of the work, and the lack of digital licensing, the use of this narrowly tailored excerpt constituted fair use.”

These are starkly contrasting visions of what is happening with these excerpts and with electronic reserves, as practiced at a great many universities, as a whole.  It will be interesting, to say the least, to see how Judge Evans decides between such divergent views.

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