By Bill Hannay
Two years ago, I reported at the Charleston Conference on the trial court’s decision in Cambridge University Press v. Becker (Georgia State). This was the case in which certain publishers had brought suit against Georgia State University (and several of its officials) for alleged copyright violations arising from GSU’s electronic reserve policies. With only a handful of exceptions, the trial court found for the university. In October of this year, the U.S Court of Appeals for the 11th Circuit reversed and remanded the case.
Here’s the background: Many teachers at the university specified readings from case books, text books, collections of essays, etc. Pages from the books would be photocopies, scanned, and put on “electronic reserve,” so that students in the course could sit in their dorm rooms, open up their laptops to the website, and read or download the selection from the electronic reserve. This means that they could avoid having to go to the library and actually take a book off the shelf, open it, and read the assignment. Fairly stated, this approach is enormously convenient and does not suffer from the problem which I encountered so often in college: when I would get to the reserve reading room, someone would already be reading the book or – worse – would have cut the chapter out of the book. (What can you say? “Gee, Professor, I was going to do the work, but the article just wasn’t there!”)
So, Cambridge University, Oxford University and Sage Publications challenged GSU’s electronic reserve system as well as their “uLearn” system for digital distribution of “coursepacks” contained scanned excerpts of essays and book chapters for students. The original complaint asserted that 6,700 works had illegally been made available to students for downloading, viewing, and printing for some 600 courses at the school. Over time, the case ended up, for various reasons, focusing on 99 of those readings. The case went to trial, and at the end of it, the plaintiff-publishers dropped 25 of the 99, leaving 74 challenged extracts. District Court judge Orinda Evans went through each and every one of the 74, performing a “fair use” analysis under the statutory test set forth in the federal Copyright Act. She came to the conclusion that all but 5 of the 74 readings were, in fact, fair use.
The stand-out issue in the trial court’s opinion was her interpretation of the third factor in the copyright statute’s fair use test – “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” 17 U.S.C. § 107 (3). The District Court applied a flat quantitative analysis and said that, if less than one chapter (or 10%) of the book had been excerpted and put on reserve, then that constituted fair use. It was an interesting way to do it and an appealing methodology because of its ease of application.
That approach was not appealing to the Court of Appeals, however. The 11th Circuit held that the trial court’s bright-line 10% test was “improper” and that this factor – like all parts of the fair use test — must be judged on a work-by-work basis. Use of more than 10% might be fair use in one situation, and use of less than 10% might not be fair use in other circumstances. The appeals court also held that the District Court erred in holding that the second fair use factor—the nature of the copyrighted work—favors fair use in every case. In the appellate court’s view, the District Court should have held that the second factor was neutral or even weighed against fair use where “evaluative, analytical, or subjectively descriptive” material dominated. The trial court’s analysis of the first and fourth fair use factors was considered more or less okay.
It took the appellate court 112 pages to say this. It took another 17 pages for one of the judges to set forth his concurrence in the reversal of Judge Evans’ opinion and to complain vigorously that the majority did not go far enough in criticizing her overall analysis. (“It seems to me that the District Court’s error was broader and more serious than the majority’s analysis concludes.”)
On remand, the parties and the trial judge must now consider how to pick up the pieces and determine whether there is livable way forward to get GSU off the injured reserve list.