At a copyright panel at the ALA Annual Conference in Anaheim, Duke University scholarly communications officer Kevin Smith held aloft a paper copy of Judge Orinda Evans’ decision in the Georgia State e-reserves case. “People think because its weighs a lot it carries more weight,” he quipped. “It’s just a district court opinion,” he stressed, and “is not binding on anyone but the parties.” At Duke, Smith said, an institution with a reasonable e-reserve policy, he has advised his own administration to do nothing in terms of revising practices, at least for now. But, he added, the true impact of the GSU decision will start to become clear when Judge Evans issues her final order for relief, and after that, what might happen on appeal.
The discussion comes as attorneys for Georgia State University submitted on June 15th their own proposal for final relief in the case. To no one’s surprise, GSU attorneys argued that no injunction was needed at all. The GSU proposal comes after publishers, as requested by Evans, submitted their proposal for relief, and argued that the five cases of infringement Evans’ found justified the same sweeping injunction publishers had proposed before trial, although they ultimately proposed a more narrow, if still very broad injunction that would give publishers a measure of oversight of e-reserves at GSU.
“It is probably not unusual for the two sides to have such divergent views about the remedy,” Smith blogged last week, “but one has to think that, given that she has now been presented with the full range of options that were before her in the first place, Judge Evans wonders if it was worthwhile even to ask the parties in the first place.”
In short, GSU argues that because there were so few instances of infringement, (with no findings for one of the plaintiffs, Cambridge University Press), and because GSU has already revised its e-reserve policy to more closely hew to the “bright lines” Evans proposed in her May 11 ruling, only a declaratory judgment is warranted. “GSU is arguing that, having amended their policy (which the Judge admitted was a good faith attempt to obey the copyright law in the first place) to correct the flaws the Judge found, all that is needed is a declaratory judgment that the policy now correctly defines fair use for the GSU faculty.” Smith explains.
Smith made his remarks at a standing-room only, two-hour panel discussion on copyright and fair use. He was joined by USC law professor Jack Lerner and enterntainment attorney with firm Donaldson & Callif, Dean Cheley. The panel discussed four cases and their potential impact: the GSU case, Authors Guild vs. Google, Authors Guild vs. HathiTrust, and a recently decided streaming video case, AIME vs. UCLA. Lerner largely devoted his remarks to the orphan works issue, while Cheley spoke of the growing embrace of fair use in documentary film, offering three simple effective rules for using video clips in documentary work: first, is there a point to using the clip; second, are you using just enough of the work to make that point; and three, is that point obvious to the audience?
The panel’s message was clear: fair use is vibrant, and legitimate, and librarians and educators should not shy away from using it. The GSU case, however, was clearly the most impactful case for the assembled librarians, and Smith did his best to tamp down rampant speculation about how university and college administrations should react to the recent decision. For most institutions, no action is required at this point. However, if you think nothing is fair use and everything must be licensed to avoid trouble, the decision does clarify that unlicensed e-reserves are okay. And, he added, if you think everything is fair use because it’s being used in an educational environment you should revisit that idea, too.