In the digital age, copyright litigation can be a little like Forrest Gump’s box of chocolates—you never know what you’re going to get. And I have a feeling that attorneys at Georgia State University may not be happy with the chocolate-covered cherry they just plucked from U.S. Second Circuit Court of Appeals Judge Pierre Leval’s recent opinion in the Google Books case.
Sure, Google’s victory is good news for libraries, and a victory for fair use. But tucked into Leval’s written opinion are some conclusions and observations that could signal trouble for the GSU administrators locked in another key fair use battle, this one with publishers, over the use of digitized course readings on campus.
First filed in 2008 by three academic publishers, the suit (Cambridge University Press v. Patton) accuses administrators at GSU of systematically encouraging faculty members to offer unlicensed digitized copies of selected readings (known as e-reserves) as a low-cost alternative to licensed coursepacks. In 2012, Senior U.S. District Judge Orinda Evans ruled against the publishers, finding fair use. But the case is now back with her, after the 11th Circuit reversed last October and remanded the case with instructions for Evans to rebalance her four-factor fair use analysis.
In a remand brief filed this summer, the publishers argued that the 11th Circuit’s ruling compels Evans to be “primarily concerned” with the effect of GSU’s copying on the publishers’ business, because the use of unlicensed copies threatens their “incentive to publish leading works of scholarship.” And in his Google Books opinion, Leval bolstered that point of view.
In explaining why Google’s commercial aims do not preclude the company from claiming fair use, Leval, in a footnote, observed that there is “likewise no reason to presume categorically that a nonprofit educational purpose” will always qualify as fair use.
“Authors who write for educational purposes and publishers who invest substantial funds to publish educational materials would lose the ability to earn revenues if users were permitted to copy the materials freely merely because such copying was in the service of a nonprofit educational mission.” He concluded, “The publication of educational materials would be substantially curtailed if such publications could be freely copied for nonprofit educational purposes.”
For the publishers in the GSU case, those have to be welcome words, especially coming from Leval, widely considered the nation’s leading fair use jurist. But do they spell trouble for GSU?
“It certainly suggests that there has to be more to their argument than, ‘It’s for education,’ ” says Brandon Butler, practitioner in residence at the American University Washington College of Law. However, Butler says Leval’s view is not controversial. In fact, Butler has argued the same point, and, he says, the Association of Research Libraries’ best-practices guide for e-reserves is fully consistent with Leval’s view. “Educational use of educational materials is a very, very hard sell as a fair use,” he explains, “because there’s not a transformative story to tell.”
Indeed, GSU attorneys conceded early on that the copying at issue in their case is not, in a legal sense, transformative. In the Google case, for example, the copies at issue were deemed transformative because they are used for a new purpose, to enable full-text searching and indexing. But the copies in the GSU case are used for same purpose as the originals: to be read by students. Still, GSU officials argue that their digitized copies are protected by fair use because nonprofit educational use is at least on an equal footing as transformative use under the law, and because “teaching fulfills copyright’s core purpose: the spread of knowledge and ideas.”
So far, the courts have agreed with GSU on that count. Both the district court and the 11th Circuit have held that “use for teaching purposes by a nonprofit, educational institution... favors a finding of fair use under the first factor, despite the non-transformative nature of the use.”
But this is where things get sticky. When copies are nontransformative, the courts have also acknowledged a greater threat of “market substitution.” And this is what Evans will largely be focused on when she rebalances her fair use analysis in the GSU case: whether the market harm the publishers claim (the fourth fair use factor) deserves significantly more weight in the court’s overall fair use determination than the educational benefits claimed under the first fair use factor.
The Google case has understandably drawn more headlines, but the GSU case may ultimately prove more important. After all, Google’s library scanning project was a singular, extraordinary digitization effort, while the small digitized readings like those at issue in the GSU case are common on college campuses. And, for all the fury it generated, the outcome of the Google case was never really in doubt, legally. The outcome of the GSU case, however, is in question. And perhaps the biggest question is whether Leval’s observations in the extraordinary case of Google might tip the scales in the GSU case, and ripple into the day-to-day application of fair use in higher education.
*Update: Last week, as this column was going to press, attorneys for the publisher plaintiffs filed a notice in the GSU case pointing Judge Orinda Evans to Leval's decision in the Google case, and citing the text of the footnote quoted above. "As the court of appeals observed," the filing emphasizes, pointing to the footnote, "the fair use doctrine does not authorize a presumption in favor of non-profit educational uses of copyrighted works."