A “high-profile defeat” for publishers is how Brandon Butler, director of public policy initiatives at the Association of Research Libraries, described the May 11 verdict in Cambridge University Press et. al. v. Mark Becker et. al., a closely watched copyright case involving the use of electronic course reserves at Georgia State University. In a 350-page decision, Judge Orinda Evans rebuked publishers, who had sought a sweeping injunction that could have had major implications for the use of unlicensed course content throughout higher education.
The suit was filed in April of 2008 by three academic publishers, Cambridge University Press, Oxford University Press, and Sage (supported by the Association of American Publishers and with costs partially underwritten by the Copyright Clearance Center). It alleged that GSU administrators sought to use unlicensed e-reserves as an illegal, low-cost “market replacement” for traditional printed coursepacks. GSU officials countered that the uses were protected under fair use. In the final analysis, Evans found just five instances of infringement from 99 works challenged.
“In general I expect librarians to be happy about the outcome of this case,” blogged Duke University’s Scholarly Communication Officer, Kevin Smith. “It suggests that suing libraries is an unprofitable adventure.” But, he added, the decision is something of a mixed bag and poses some “difficult challenges for everyone involved.”
PW takes a brief look at the ramifications of the decision on the parties involved, and what likely comes next.
For Georgia State
Prevailing on all but five counts, GSU has scored a legal victory. GSU president Mark Becker, one of the defendants in the case, called the decision “significant” and said the university was “pleased to have been a trailblazer in this increasingly complex digital copyright environment.”
The extent of GSU’s victory, however, remains to be seen. Both sides will now offer their input into what injunctive relief should be ordered for the five infringement claims publishers succeeded on, and both sides have asked for their legal fees as well. And those fees are considerable. AAP’s Tom Allen put the price tag for the plaintiffs at “several million dollars.” If nothing else, the cost has to take some of the shine off any victory for budget-challenged GSU. The university won, but the time and money spent on the case makes it tough to spike the ball.
Publishers claim GSU was an extreme example, but the library community viewed the suit as a wider attempt to shut down the practice of unlicensed e-reserves. Indeed, the tension over e-reserves goes back to the early 1990s, and publishers have long saber-rattled over the practice. That publishers have now taken their shot—and failed—is a positive outcome for libraries.
“Aside from setting up a framework that generally favors libraries,” wrote ARL’s Brandon Butler in an issue brief after the decision, “the decision was a major defeat” and “an anticlimax after years of intimidation and litigation.”
The court offered “some bright line rules that provide libraries with clear safe harbors,” explained Jonathan Band, a Washington attorney and library consultant. Specifically, Judge Evans devised a standard for determining fair use in e-reserves: “decidedly small” extracts of works, defined as less than 10% of a work that is less than 10 chapters, or one full chapter for books over 10 chapters—provided the extracts are not “readily available” to be licensed digitally, but if they are, must be “reasonably priced.”
Some aspects of the decision raise issues for libraries, however. “The decision is certainly not perfect,” ARL’s Butler observed. In fact, the “bright line” threshold of 10% in the GSU decision is “clearly narrower” than the ARL’s own Code of Best Practices. With its “bright lines” the court sought to formulate a more practical, workable, e-reserves policy, which is useful, Butler wrote, “but inevitably places an emphasis on the quantitative rather than the qualitative aspects of fair use.”
Nevertheless, bright lines aside, libraries are “free to take more progressive steps,” Butler stressed, as the decision “emphasizes the legitimacy and centrality to fair use of the nonprofit edutional mission.”
In a statement, the Association of American Publishers expressed disappointment with the verdict. The court “failed to examine the copying activities at GSU in their full context,” AAP officials claimed, and parts of Evans’s fair use analysis, they contend, are “legally incorrect.”
Publishers’ attorney Bruce Rich said it was too early to tell what the proposed injunction would look like, or whether publishers would appeal. But he disputed the impression that GSU was “vindicated” in 95% of its fair use claims. Although the publishers prevailed on just five of 99 counts, 75 claims actually made it to trial, and only 48 actually got to a fair use analysis, Rich said. And if not for technicalities, including mundane record-keeping, he suggested the number of infringement findings would have been far greater.
Monday morning quarterbacking aside, the loss does seem to run deeper. Evans rejected a number of the publishers’ core claims. For example, she all but dismissed concerns that e-reserves would destroy publishers economically; rejected publishers’ long-running argument that library e-reserves were analogous to commercial coursepacks; and ruled that the 1976 Classroom Guidelines long pushed by publishers as an acceptable threshold for copying are basically incompatible with fair use. She also held a GSU checklist, while flawed, was a good faith effort to advise faculty.
Looking for a silver lining, publishers acknowledged that the ruling offers some clarity and establishes some useful bright lines—just not where publishers would prefer those lines be drawn, while not quite conceding that Evans' word would be the last.
“It is premature and unwise for anyone to declare victory or defeat,” read a statment from the Association of American University Presses. “The ruling is 347 pages long, not easy to understand, and its interpretation of the law is controversial and unprecedented in several important respects.”
There will be much more analysis to come, as the parties and interested observers digest the ruling. But for now, one thing is clear: Evans’s verdict stands as the most significant analysis of fair use in the educational realm to come out of the courts in decades. How will it play out in practice?
“I expect to see fair-use e-reserves codes that treat under 10% as presumptively okay,” blogged New York Law School’s James Grimmelmann, “and amounts over 10% but less than some ill-defined maximum as presumptively okay if... a license to make digital copies of excerpts from the book is not available.” Given that publishers prevailed on just five counts, Grimmelmann expects the pending injunction from the court will be narrow. “But given how amenable the court’s proposed limits are to bright-line treatment,” he added, “it is likely that the publishers will push to write them in to the injunction.”
The legal aftermath, meanwhile, may be the easy part. The net effect of this case has been to point out the dysfunction in academic publising, and it could serve to accelerate a shift to open access. If nothing else, the lawsuit has shown that begging for crumbs at the table of fair use is not a viable way to run a higher education system—not for publishers, who need to cover their costs; not for faculty, who need to publish for promotion and tenure; not for the public, which needs a vibrant economy of ideas; and certainly not for students, who can’t afford the escalating prices of learning materials.
As Barbara Fister, librarian at Gustavus Adolphus College, once blogged: “Something is badly broken when university presses sue universities for using their materials.”