Something Is Wrong When A Judge Needs 350 Pages To Decide If A College’s Digital Archives Are Fair Use

Something Is Wrong When A Judge Needs 350 Pages To Decide If A College’s Digital Archives Are Fair Use

from the feel-free-to-dig-in dept

Nearly a year ago, we wrote about a somewhat “obscure” lawsuit concerning fair use at universities. We’ve been noting that, up in Canada, the courts and upcoming legislation are potentially clearing the field for universities to declare “fair dealing” on the use of worksâ€"but they are bizarrely failing to do so. In the US, however, Georgia State did assert its fair use rights over certain educational uses, leading to a complex situation in the courts. Georgia State was sued by some publishers, because of the use of “e-reserves” (content posted on websites for students to download). The university claimed fair use. The publishers (who had the lawsuit funded by the American Association of Publishers and the Copyright Clearance Center — who helps collect fees for these kinds of things) argued that an older ruling about print shops not being able to print out coursepacks without clearing everything applied.

On Friday, the ruling came out, and it’s a somewhat astounding 350 pages, as district court Judge Orinda Evans spent the time to meticulously go through every count of infringement in great detail to determine whether or not the university infringed. The summary version is that the publishers only won on 5 out of 99 counts. That certainly doesn’t look very good for the publishers. However, digging into the details is where it gets interesting. I’d recommend reading both NY Law School’s James Grimmelmann’s analysis and Duke University’s Kevin Smith’s analysis.

There’s a lot to dig into, but the quick summary is that it’s mostly good, but there are still some significant problems with the ruling. Let’s call out some highlights:

A bunch of the specific claims didn’t even reach a fair use analysis because the judge rejected them for failure to prove they held the copyrights in question! This may seem like a basic point, but US law is pretty clear that the burden is on the plaintiff to prove they own the copyright (though, this is something that the US is trying to change under the leaked draft of the Trans Pacific Partnership agreement). The failure of the publishers to even be able to show they held the copyright is a pretty stunning flop.
Another batch of claimed infringements were dropped on the basis of de minimis copying because they were never downloaded by any students. This is an interesting interpretation of de minimis, though I’m not convinced it would hold up at a higher level if the case gets that far. James Grimmelmann’s summary explains what happened here:

The court dismisses these from the lawsuit as de minimis, explaining that these uses by the University, while technical implicating the copyright ownersâ€™ exclusive rights, donâ€™t affect the incentives for authors to create. This puts more teeth in the de minimis doctrine in copyright: it goes beyond the view that de minimis means â€œnot substantially similar.â€ It also strengthens the argument that â€œinternal useâ€ copies never used to reach an to an audience that reads them for their content donâ€™t infringe. Think, for example, of the HathiTrustâ€™s archive of scans from Google Books.
When it gets to the rest, Judge Evans dutifully does the standard 4-factor “fair use” test on each and every case rather than broad brushing across the batch. While the four factor test is supposed to be used in fair use cases, I do always worry when judges view the fair use test entirely as a “formula.” The law is pretty clear that while the four factor test should be considered, it need not be the only thing that is considered — here, however, the judge just lines up each claim and runs it through the test.
Even more worrisome, is that the judge seems to get excessively formulaic in applying parts of the test. Specifically, the third factor, on the amount copied, leads the judge to come up with her own hard and fast rules, based on… well… that’s not entirely clear. Here’s what the judge decided:

Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three. The pages are counted as previously set forth in this Order. In practical effect, this will allow copying of about one chapter or its equivalent. Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three.

While there are some benefits to having a specific “rule,” I’m not sure how this particular rule really matches with the intent and reasoning behind the fair use doctrine. If you copy two whole chapters in a book with 50 chapters, suddenly that goes against this factor, despite, percentage-wise, being less than copying 10% from a book with less than 10 chapters? Why the odd distinction?
The “good” news on this point, at least, is that while she created her own rules for the third factor, she flat out rejected the ridiculous “Classroom Guidelines” that had been set up in 1976 between the publishing industry and “certain representatives of the education establishment.” Basically these were rules that, if followed, meant the publishers wouldn’t sue. However, the judge finds them somewhat silly, and with no basis in the law, including things like the claim that a professor can only claim fair use if they use a work for one semester (requiring them to license it for future use).
Also troubling is the interpretation on the fourth factor — “the effect on the market,” — which is often considered the most important factor (even if some reject this claim). Some courts have argued that this factor often depends on whether the copyright holder is offering a license for the work or not — and Judge Evans buys into that argument here. Basically, the result on this factor depends, almost entirely, on whether or not the publisher is offering a license for the work. Again, Grimmelmann points out that there’s good and bad here. This does, at the very least, suggest that libraries can make use of orphan works, since there won’t be any active licenses available for those works. But, more troubling, is that it doesn’t look at wider market factors, including alternatives to licensing (i.e., not obtaining the work, or obtaining it through other means, such as by photocopying). You shouldn’t automatically assume that if a publisher offers a license, not licensing it automatically means the publisher loses out on revenue. But the judge seems to make exactly that assumption here.
On the other two factors, the judge reasonably says that the fair use factors clearly favor fair use: the “purpose” of the use being for “nonprofit, educational purposes of teaching and scholarship,” and the nature of the works being “informational.” That’s good, and is applied across the board.

On the whole, the publishers certainly won’t be happy that they lost on so many claims in the case. And there are some good points on fair use in there — but as described above, many of the statements by the judge are a bit worrisome, and could lead to problems for future fair use claims in situations where a fresh analysis might seem like it should be fair use.

All that said, it seems highly likely that the publishers are going to appeal this, and we could be bouncing around the court system for years before any of this is finalized.

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