Does It Pay To Sue Libraries? | Peer to Peer Review

“Ever since the George State e-reserves copyright lawsuit was filed in April 2008, the academic library (and faculty who were aware of it) community has been waiting to find out how Judge Orinda Evans would view the provision of digital course readings under fair use.  Now we know, based on her May 11 ruling, that she believes this practice is a legitimate and important part of the pedagogical process, as long as it is done within reasonable limits. The judge writes ‘Allowing use of unpaid small excerpts of copyrighted works by students does help spread knowledge, because it reduces the cost of education, thereby broadening the availability of education.’ (p. 83 of the decision)  As I write this, we are waiting for the debate to begin over the injunction that the Judge will fashion to address those five infringements that she found among the 75 excerpts from books that she examined. The publisher plaintiffs will suggest wording for such an injunction, and Georgia State will have a chance to respond to that suggestion before Judge Evans issues a final order.  But even before we know for sure about an appeal, the central question regarding this case has shifted to ‘does it pay to sue libraries?’  Libraries traditionally have received favored treatment from both Congress and the courts... So why was this case brought, and why does an appeal seem likely?  The answer, of course, is the CCC, which presumably makes most of its $215 million gross revenues (in FY 2010) from permission fees (p.24 of the opinion)... In his analysis of the decision, law professor James Grimmelman suggests that the CCC has really been the big winner in this case. From one side he is clearly correct. Publishers now have a much greater incentive to allow the CCC to license all the works they publish, and to include digital options in that licensing... The big question, in my opinion, is whether or not more licensing payments from libraries will actually be driven to the CCC because of this ruling. I can think of three reasons why that might not be the case. First, this is only a District Court ruling... In the short term, at least, colleges and universities—certainly those with policies that are not wildly out-of-line with the judge’s analysis— may decide to wait and see, and especially to wait for an appeal, before they change any policies or budget priorities. We need to remember that an appeal is an unpredictable thing; an appellate court might even hold that the criteria articulated... Second, academic libraries always have the option of simply turning away more requests for e-reserves than they do now. If an institution decided to strictly implement Judge Evans’ standards as they are articulated in the ruling, they could still maintain whatever licensing budget they currently have by simply not using any excerpt that does not conform to the judge’s definition of fair use for the e-reserves context...  Finally, let’s imagine a hypothetical library that considers an e-reserve excerpt to be fair use even if it is significantly larger than Judge Evans thought was permissible, but which also pays for permission anytime an excerpt is used subsequent to the first use. If that library decided not to wait, but to put the definition of fair use in this ruling into immediate practice, two things would happen. First, a smaller percentage of a work would be acceptable for unpaid use as a fair use. Second, the library would no longer pay permission fees for a subsequent use of that smaller excerpt, because the judge firmly rejected the “subsequent semester” rule as “an impractical, unnecessary limitation.” Could these two considerations balance each other out, result in no net increase in permission fees? It is certainly possible, especially if our hypothetical library works with its faculty to reduce some of the requested excerpts to within the judge’s standard.  My point is that libraries still have a lot of control over their practices and their budgets; this decision does not, in fact, automatically demand that libraries pay more licensing fees. That is something that the plaintiffs and the CCC should take into account as they decide whether the expense and ill-will they have generated with this lawsuit are worth what they can gain from continuing it...”