The 11th Circuit Court of Appeals last Friday issued its long-awaited ruling in Cambridge University Press vs. Patton case, also known as the Georgia State e-reserve case. In the decision, the 11th Circuit reversed a lower court’s fair use finding, and remanded the case with instructions for a do-over. But as the dust settles, library supporters say the 129-page decision may not be the significant blow that was hoped for by the publishers.
In a short statement, officials at the Association of American Publishers (AAP) said they were still digesting the decision, but praised the reversal. Officials at Oxford University Press, one of the named plaintiffs in the suit, also praised the decision, saying they “look forward to a revised ruling from the lower court that we hope will draw this litigation to a close.”
The reversal on appeal was largely expected, after a rough hearing before the panel last fall. But while the plaintiffs praised the court’s decision, library and fair use advocates say it is not a dramatic reversal. The court, GSU defenders note, endorsed some of district Judge Orinda Evans' key findings, although it disagreed with the process Evans’ engaged.
“Once one begins to read carefully, the panel opinion gets much better,” noted Duke University scholarly communication officer Kevin Smith, on his blog. “In many ways, [the publishers] won a reversal, but lost the possibility of achieving any of their most desired outcomes.”
Notably, the appeals court agreed with Evan’s decision to review each alleged infringements individually, which the publisher plaintiffs had argued ignored GSU’s larger pattern of infringing practices.
But the court disagreed with how Evans balanced her four factor fair use test, noting that the factors are not equal, and that Evans’ “arithmetic approach was improper," observing that simply adding up factors does “not mechanistically resolve fair use issues.”
The court also rejected Evans’ controversial attempt to insert a “bright line” rule of thumb for copying works. “By holding that the third factor favored fair use whenever the amount of copying fell within a 10% or one-chapter baseline," the opinion reads, "the District Court abdicated its duty to analyze the third factor for each instance of alleged infringement individually.”
Notably, it is the publishers who have endorsed a bright line limit, although at a level significantly tighter than the threshold Judge Evans’ erroneously ordered.
The case at the heart of the appeal, Cambridge University Press et al v. Patton et al, was filed in 2008 by three academic publishers: Oxford University Press, Cambridge University Press and Sage Publications. It alleged that a handful of GSU administrators systematically encouraged faculty members to commit copyright infringement via GSU’s electronic reserve and course content systems as a no-cost alternative to coursepacks. Ultimately, however, Evans found infringement on just five of 99 counts, and ordered the publishers to pay roughly $3 million in legal fees to GSU.
One immediate benefit of the ruling for publishers is that the appeals court vacates the order granting legal fees—meaning the publishers will get their $3 million back. But it remains to be seen if there is much else to be won, as the case heads back to Judge Evans, or, if a settlement may now finally be in the offing.
“It is difficult to predict what will happen next,” blogged University of Minnesota librarian Nancy Sims. “This is not a slam-dunk case for the publishers, though it does favor them more than the first District Court opinion. Remand and review will require a great deal of time and resources, again, and the parties may feel that it's not worth that investment, and settle.”