The Laboratorium : Inside the Georgia State Opinion

abernard102@gmail.com 2012-05-15

Summary:

“On Friday, the long-awaited decision in the Georgia State e-reserves case (a.k.a. Cambridge University Press v. Becker) dropped. By way of context, the case is a challenge by three academic publishers (Oxford University Press, Cambridge University Press, and Sage Publications) against Georgia State University’s e-reserves policy. The publishers sued in April 2008, in a lawsuit funded by the Association of American Publishers and the Copyright Clearance Center, claiming that the e-reserves policy went far beyond the bounds of fair use. Georgia State, as a state university, invoked the doctrine of sovereign immunity, the practical implication of which is that the publishers can only obtain injunctions against future infringements, not damages for past infringements. Since it also tightened up its e-reserves policy in December 2008, it also successfully argued to the court that only the uses made under the new policy should be relevant to any potential injunction... the opinion is 350 pages... over two thirds of the opinion are dedicated to a highly methodical copyright ownership, infringement, and fair use analysis of seventy-four separate claims of infringement, using standard templates and highly repetitive language. Having now dug through the details, I’d like to offer a few observations. First, over a third of the claims didn’t even make it to the fair use stage at the heart of the case. In many cases, the publishers were unable to prove to the court’s satisfaction that they owned the copyright in the portions of the books that were copied and uploaded. Sometimes they couldn’t produce a timely registration certificate and there were proof problems with originality; sometimes they couldn’t find a work-made-for-hire agreement or copyright assignment from the authors of individual chapters in edited volumes. The court was unsympathetic: no documented chain of title, no lawsuit. There’s a looming e-rights mess... This opinion either recognizes or contributes to the mess, depending on your point of view. Other claims dropped out before the fair use stage because they were uploaded to the e-reserves system but never downloaded by students. The court dismisses these from the lawsuit as de minimis, explaining that these uses by the University, while technical implicating the copyright owners’ exclusive rights, don’t affect the incentives for authors to create. This puts more teeth in the de minimis doctrine in copyright: it goes beyond the view that de minimis means ‘not substantially similar.’ It also strengthens the argument that ‘internal use’ copies never used to reach an to an audience that reads them for their content don’t infringe. Think, for example, of the HathiTrust’s archive of scans from Google Books... As an aside, the e-reserve logfiles played a key evidentiary role in the case. Specific users were never identified, but if a file had a total hit count of two, it’s unlikely that students actually read it... When the court did reach fair use, it held across the board that two of the four factors favored Georgia State. The purpose of the use, while not transformative, was nonetheless for highly favored educational purposes by a nonprofit institution. And the nature of the works was consistently informational. On the third factor, the amount copied, the court repudiated the Classroom Guidelines, calling them ‘not compatible with the language and intent of § 107.’ It noted that the numerical limits in the Guidelines are so stringent that not one of the excerpts at issue in the case would fit within them. It was particularly uninterested in the Guidelines’ position that copying not ‘be repeated with respect to the same item by the same teacher from term to term,’ which the court described as ‘an impractical, unnecessary limitation.’ Instead, the court fashioned its own quantitative test. For books of nine or fewer chapters, the court set a threshold of 10% of the total page count; for books of ten chapters or more, the threshold was a single complete chapter. (The chapter-based rule creates an odd incentive for publishers to create books with a surfeit of tiny chapters.) Copying of any amount under this threshold, the court held, would be treated as “decidedly small.” In practical terms, this ended up being a one-sided bright-line rule: copying of less than 10% or one chapter always ended in a fair use win for Georgia State. Finally, the fourth factor, the effect on the market, favored the publishers whenever CCC was offering a digital license for copying the book in question, and favored Georgia State whenever there was ‘no evidence in the record to show that digital excerpts from this book were available for licensing as of the date of infringement.’ In practice, this was another one-sided bright-line rule: no digital license meant an instant win for Georgia State. The court repeatedly emphasized that students would not have bought the assigned books as a substitute for the excerpts posted on the e-reserve system. This treatment of licensing is likely to have significant implications. On the one hand, it suggest

Link:

http://laboratorium.net/archive/2012/05/13/inside_the_georgia_state_opinion

Updated:

08/16/2012, 06:08

From feeds:

Open Access Tracking Project (OATP) » abernard102@gmail.com

Tags:

oa.new oa.policies oa.licensing oa.comment oa.copyright oa.societies oa.libraries oa.usage oa.orphans oa.litigation oa.librarians oa.aap oa.fair_use oa.ccc oa.georgia.state.u oa.georgia_state.u oa.libre

Authors:

abernard

Date tagged:

05/15/2012, 16:05

Date published:

05/15/2012, 16:40