Ga. State’s Loss in ‘E-Reserves’ Case Might Actually Be a Win for Librarians

In May 2012 fair-use advocates celebrated a federal judge’s decision in a high-profile copyright case. The ruling was seen as a decisive victory for Georgia State University, whose librarians wanted to be able to make freely available as much copyrighted material as possible to students via its electronic reserve system.

On Friday a federal appeals court ended that celebration by reversing the judge’s decision and sending the “e-reserves” case back to the lower court for further action.

At a glance, the latest ruling looks like a loss for Georgia State and its allies, and a win for three academic publishers that had sued it. But was it, really? In the days since the ruling was issued, several university-based copyright experts have argued that the reversal is not as bad as it might seem.

Kevin Smith, a scholarly-communications officer at Duke University, argued in a blog post that even though the publishers had revived their case, the appeals court had ruled against them on several important points:

• The court agreed that potential copyright violations should be addressed on an “item by item” basis, rather than a “big picture” approach that would probably require Georgia State to purchase a “blanket license” to post e-reserve materials.
• The court agreed that when evaluating whether e-reserve copying counts as fair use, it should be relevant that university libraries are nonprofit, educational institutions.
• The court rejected the lower court’s “10 percent rule,” which drew a bright line on how much of a copyrighted work the university could make available free. The appellate judges instead advocated for “a more flexible approach that takes into account the amount appropriate for the pedagogical purpose.”
• The court agreed that if a publisher had not made it possible for libraries to license excerpts of a copyrighted work, then libraries do not harm the market for the publisher’s products by copying the desired excerpts and making them freely available.

“These losses, which constitute the heart of what the publishers were hoping to achieve when they brought the lawsuit, are probably final,” wrote Mr. Smith.

Nancy Sims, a copyright-program librarian at the University of Minnesota Libraries, also cheered the court’s ruling, even as it reversed the previous decision in favor of Georgia State.

She cited the court’s opinion that the Classroom Guidelines, a set of rules written nearly 40 years ago by the U.S. Copyright Office, should not be treated as gospel by universities that maintain e-reserves. Ms. Sims wrote:

“Maybe this isn’t great news to the many folks who have (quite correctly) long-since abandoned applying any mental energy to the outdated Guidelines. However, I regularly encounter librarians, library workers, teachers, and other educators who have received no other information about fair use—and often, these folks have explicitly been trained that the Guidelines are the One True (and complete maximum) Way to Know Fair Use in classroom contexts. (Oddly enough, many of them have also received their only copyright training at no cost, from generous publishers …) Having an affirming court opinion to refer to that clearly refutes the applicability of the Classroom Guidelines is quite a blessing, from my perspective.”

Georgia State, which will now have to continue to litigate the case while paying its own legal fees (the lower court’s decision to make the publishers pick up the tab was vacated), responded tepidly to the new ruling.

“Georgia State will continue to defend the rights of universities in this complex digital environment and protect access to information for our students,” said Kerry Heyward, the university’s lawyer, in an email to The Chronicle. “This decision, while not the outcome we had hoped for, supports the lower court’s ruling on fair use.”