Georgia State and Fair Use: Copyright on Appeal

Several months have passed since the federal district court in Atlanta ruled in Cambridge University Press v. Becker that copying book excerpts for electronic reserves at Georgia State University (GSU) is within fair use.  Following a series of important procedural moves, the case is now set for appeal to the 11th Circuit.  As the parties and other interested groups prepare their legal arguments, this seems a good time to reflect anew on the district court’s ruling.  The court’s detailed opinion has generated some debate about winners and losers, but one winner is clear: The law of fair use.  The court has given the law of fair use for nonprofit education important clarity and a workable direction based soundly on the factors laid out in the Copyright Act.  The judge faced a formidable challenge with this case, and her ruling broke new ground and offers a helpful analysis for educational institutions, libraries, publishers, and authors moving forward with educational fair use.

Before going further, a bit of caution and disclosure.  First, any prediction about the decision on appeal would be reckless, and this case could conceivably go the U.S. Supreme Court.  The final word is far ahead.  Second, this essay focuses on only salient aspects of the fair use analysis.  The ruling extended to nearly 350 pages and encompassed much more than copyright; a short blog post cannot capture the depth and nuance of the decision.  Third, I served as the expert witness for the defendants, submitting two written reports (links here and here) and testifying over a period of three days during the trial in May and June of 2011.  My role was to testify on relevant matters as I understood them in my independent capacity.  I write these comments in that same spirit.  This essay is solely my views, and does not necessarily reflect the views of any parties or my employer.

Why is the law the winner?  When breaking new ground, one can easily dig a hole to nowhere.  Although courts have handed down hundreds of rulings on fair use, they had never before ruled on the law as exercised in a true nonprofit educational context.  The Georgia federal court thus faced the extraordinary opportunity and challenge to shape future thinking about copyright and for education in many ways beyond just electronic reserves at only one university.  The judge tunneled carefully and thoughtfully.

The fair use statute sets forth factors that had been developed through many decades of judicial decisions:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Further, the opening sentence of the statute affirms explicitly that fair use is for purposes such as teaching, research, and scholarship.  Many of the following key principles of fair use from the GSU decision arise in the context of that language and the four factors.

The First Factor and Nonprofit Education:  Reckoning with the fact that this was the first case to arise in the truly nonprofit educational context, the court was persuaded to hold the “purpose” factor firmly in favor of fair use:  “The language of § 107 itself and the Supreme Court’s opinion in Campbell compel the decision that the first fair use factor favors Defendants.  This case involves making copies of excerpts of copyrighted works for teaching students and for scholarship, as specified in the preamble of § 107.  The use is for strictly nonprofit educational purposes as specified in § 107(1).  The fact that the copying is done by a nonprofit educational institution leaves no doubt on this point.”  The court distinguished this case from earlier decisions involving Kinko’s and other commercial defendants, noting that “Georgia State is a purely nonprofit, educational institution and the excerpts at issue were used for purely nonprofit, educational purposes. . . .”

The First Factor and Transformative Uses:  A transformative use generally receives a more favorable treatment under fair use.  However, the court looked to a 1994 decision from the U.S. Supreme Court to conclude that the defendants did not need to argue the transformative issue.  “While Supreme Court decisions in other factual contexts have emphasized the importance of the transformative nature of the use in applying this factor, in Campbell, the Supreme Court said the following in discussing the first fair use factor: ‘The obvious statutory exception to this focus on transformative uses is the straight reproduction of multiple copies for classroom distribution.’”  Where did this “obvious” exception come from?  The language of the fair use statute itself.  It states that fair use can allow “multiple copies for classroom use.”  Straight copying is explicitly allowed; some copying may indeed be transformative, but even when it is not, fair use can absolutely still apply.

The Third Factor and Educational Objectives:  This factor calls for evaluation of the amount and substantiality of the portion copied or used.  The court resisted strict quantity measures, noting the importance of selecting whole chapters, rather than “truncated paragraphs,” to serve an educational purpose.  “However, the selected excerpt must fill a demonstrated, legitimate purpose in the course curriculum and must be narrowly tailored to accomplish that purpose.”   The flexible standard, crafted to serve educational needs, holds users to limits and allows fair use to fulfill basic public interest objectives.

The Third Factor and the Classroom Guidelines:  The plaintiff publishers argued that Georgia State should be held to the quantity limits of the “Classroom Guidelines” from 1976.  Those negotiated standards set an excruciatingly low and convoluted measure of the length of an excerpt that may be copied from a book.  The court reviewed the origins of the guidelines, the concerns about them, and the fact that they are minimum standards.  The court rejected the guidelines on multiple grounds.  First, they are only minimum standards and not the legal definition of fair use.  “Plaintiffs do not explain their decision to seek acceptance of the minimum standards as the maximum standard.”  Second, the guidelines set “numerical caps.”  “This brightline restriction stands in contrast to the statutory scheme described in § 107, which codified a multi-factorial analysis in which no factor is dispositive.”  Once again, the court was building a concept of fair use that is flexible and that is driven by all four factors together.  The court was also rejecting guidelines that never have been binding, bear little relationship to the law, and have for decades created needless distraction from the quest for an accurate understanding of fair use.

The Third Factor and the One-Time Use Limit:  Policymakers and attorneys long have debated whether fair use permits a copy of a work on reserves for only one academic term.  The theory is that any subsequent use necessarily has lead time, allowing opportunity to seek permission.  This restriction has proved to be an enormous hindrance on reserve services, and it has created an arbitrary demarcation of fair use.  The plaintiffs urged the court to adopt the restriction.  The court rejected it flatly: the “idea that professors be prohibited from unlicensed use of the same chapter from one academic term to the next is an impractical, unnecessary limitation.  The right approach is to select a percentage of pages which reasonably limits copying and to couple that with a reasonable limit on the number of chapters which may be copied.”

The Third Factor and “Decidedly Small”:  Scrutiny of this case often gravitates to the formula that the court set forth in determining whether the amount used is allowable.  After carefully exploring the equities and flexibilities of fair use, the court offered these guideposts:  “Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three. . . .  In practical effect, this will allow copying of about one chapter or its equivalent.  Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three.  Excerpts which fall within these limits are decidedly small, and allowable as such under factor three.”  Did the court contradict itself by crafting a quantified standard after affirming the importance of flexibility?  I think not.  The court was instead creating an alternative rule for the benefit of instructors, librarians, and others who prefer the assurance of a measured standard.  I have been working with fair use for many years and have seen repeated yearnings for simplicity, even as I advocate flexibility.  The judge in the GSU case was evidently sympathizing with the thousands of instructors and others who need to make repeated decisions about fair use and was giving them a little help.  Without question, she was also preserving flexibility, and 10% was not a cap.  The court even permitted copying of more than 18% of a book under the right conditions.  But if a quantitative measure can help streamline routine decisions, the judge was ready to offer the option.  Viewed in this manner, this is not such a bad outcome.  It might even effectively bridge flexible principles of fair use with the practical implementation of policies at educational institutions.

The Fourth Factor and Market Substitution:  The average excerpt of each book evaluated in this case was less than ten percent.  The court resolved that copying ten percent of a book, even repeatedly, would not “cause substantial damage to the potential market” for the original book.  However, the court also looked to whether the making of copies was reasonably licensable, and if the copying might cut into a realistic market.  “For loss of potential license revenue to cut against fair use, the evidence must show that licenses for excerpts of the works at issue are easily accessible, reasonably priced, and that they offer excerpts in a format which is reasonably convenient for users.”  This standard leaves room for fair use.  The court was also protecting copyright owners by emphasizing that denial of payments, when digital permissions are available, harms the value of the copyright and can tip the fourth factor in favor of the copyright owners.

Policy Implementation, Oversight, and Education:  Recognizing that the exercise of fair use would necessarily be an ongoing activity of the university, the court posited a few criteria for policymakers establishing a reserves operation.  “Access shall be limited only to the students who are enrolled in the course in question, and then only for the term of the course.  Students must be reminded of the limitations of the copyright laws and must be prohibited by policy from distributing copies to others.  The chapter or other excerpt must fill a demonstrated, legitimate purpose in the course curriculum and must be narrowly tailored to accomplish that purpose.”  These standards are not unlike provisions found in reserves policies at numerous colleges and universities, and therefore should pose little disruption or surprise.  They are also generally reasonable terms that help assure a robust fair use and good protection for rightsholders.

Although the court’s opinion leaves room for debate and further analysis, the main features of the fair use analysis are well reasoned and move the law for nonprofit education in a constructive and supportable direction.  The federal district judge handed down a thoughtful opinion that articulates sound principles of fair use and dispels multiple misperceptions that had burdened understandings of fair use for many years.  The court’s analysis of the four factors, the rejection of the 1976 guidelines, and the practical means for addressing market effect are just a few examples of the ruling that will be helpful as courts strive to apply fair use in yet other new circumstances in the years ahead.  These principles deserve to be upheld as the 11th Circuit hears this case on appeal.

Kenneth Crews January 22, 2013