Why Are Some Publishers So Wrong About Fair Use? | Peer to Peer Review

We have seen several decisions in the past few months about fair use and libraries, and so far libraries are coming out ahead. The Georgia State case offered a limited win for libraries, with a decision holding that most of the challenged excerpts provided digitally to students were fair use, but also rejecting the idea that that specific use of copyrighted works was transformative, and imposing an artificial and fairly rigid rule about the amount of a work that can be copied. In the HathiTrust lawsuit, the District Court judge went much further in affirming fair use for libraries. He did rule that the scanning of copyrighted works for the purposes of providing a search function, for preservation, and for accessibility, at least for persons with print disabilities, was transformative fair use.  Judge Baer recognized what the GSU judge ignored, that a line of cases from several different Circuit Courts have held that a transformative fair use argument can be based on the purpose of the use; it need not always require actual alterations to the original work. Because he held that HathiTrust’s use of these scans was transformative, Judge Baer also ruled that the amount used was a less important matter, related not to an artificial standard but to what is appropriate for the transformative purpose (so, in the case of HathiTrust, using the entire work was appropriate). He also said that the existence of a licensing market, or a potential licensing market, is irrelevant when the challenged use is transformative because rights holders do not have a right to foreclose transformative uses, which a licensing scheme would allow.  I hope the lawyers for Georgia State are looking at this ruling as they prepare for an appeal in that case. Libraries, of course, did not initiate any of these lawsuits, nor did they decide to appeal the GSU decision. But appeals, like trials, can go in different directions. I hope GSU asks the appellate panel to reverse Judge Evans on the issue of transformativeness (especially since the 11^th Circuit, where the appeal will be heard, helped create that analysis) and to hold that, since the provision of excerpts for supplemental course reading is a transformative purpose, the rigid percentage guidelines in Judge Evans’ definition of 'decidedly small' are too restrictive. Libraries should be fighting for an 'appropriateness' standard based on pedagogical need, similar to what we saw from Judge Baer.  All this is a hopeful sign, but it is worth asking where things went so wrong. Why are we in this situation in the first place, where academic publishers are suing libraries – their own customers – over using academic publications for teaching?  ..."