A decision was issued late Friday in the Georgia State University e-reserves copyright case and Kevin Smith, Duke University’s Scholarly Communications Officer offers a thorough analysis in this well reasoned piece. Kevin’s initial reaction is that “overall there is good news for libraries … Most of the extreme positions advocated by the plaintiff publishers were rejected, and Judge Evans found copyright infringement in only five excerpts from among the 99 specific readings that had been challenged in the case.”
However, Kevin notes that are at least two real challenges for libraries in the decision. “First, the Judge applies a strict standard for the amount of a work that is permissible under fair use in this situation. The percentage she selects is 10%, or a single chapter.” Many will see this as too limiting and restrictive of fair use. It also leaves libraries with the burden of calculating percentages using total page counts. The Judge also “rejects any distinction for books that are edited, in which each chapter has a different author.” The second challenge may be even more problematic. “The Judge bases many of her analyses of the fourth fair use factor (effect on the potential market for protected work) on the percentage of the overall revenue that publishers realize for a particular title that comes from permission fees.” However, libraries do not have access to this type revenue information to make “such prospective determinations.” And Judge Evans seems to compound the difficulty for libraries by saying that “the only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available). Fortunately, the Judge qualifies this in ways that Kevin explains and which he insists librarians “should pay attention to.” Kevin continues by discussing a couple of other significant points and offering his “bottom line” summary of Judge Evans’ ruling.
Admittedly this is a complicated decision and librarians and publishers will spend a fair amount of time digesting its possible implications and fashioning adaptations. In any case, we encourage you to read Kevin’s full analysis and keep an eye open for other discussions as they appear. Obviously, this isn’t the last word on the matter.