GSU is … over?

This note is not “legal advice”, but my informed assessment of the particular case. Any librarian or education official should assess the opinion in light of their own situation and legal environment.

I hesitate to say it, after 12 years and numerous orders, decisions, and appeals, but it looks like the Georgia State University case may finally be over. The N.D. Georgia issued its remedies order on September 30, following its March 2, 2020, fair use assessment. It is *possible* that this will be appealed, but highly unlikely IMO. There are only two substantive issues in this order, and the Court basically split the baby — withdrawing their previous award of attorneys’ fees to GSU (a win for the publishers/CCC, the plaintiffs), but refusing to give the plaintiffs the supervision / reporting system that they asked for (a win for GSU, the defendants). 

There are no other big changes in this order (honestly, no other big changes since the 2014 11th Circuit decision), but I’ll sum it all up below. 

Reminder — this decision is technically binding only in the 11th Circuit. However, it is likely to be the only caselaw on the issue of ereserves / CMS course uploads, unless sovereign immunity or something else in copyright law shifts. So, while one should read this case in light of one’s own Circuit caselaw (First Circuit, here in Massachusetts), this case is likely to be highly relevant and on point, and very influential, in any potential litigation about ereserves or faculty uploads to class management systems.

To sum up holdings from the many decisions in this long-running case, prior to & including the last several big fair use opinions, libraries & universities can celebrate most of the final holdings, and plaintiffs have to be satisfied with a few (but important) points (my “takehome” is in italics).

  • Sovereign immunity means that statutory damages are not available in litigation against state institutions, thus reducing the incentive for frivolous or low-reward litigation [2010 decision; sovereign immunity in copyright cases affirmed in Allen v. Cooper last term] 
    • *** NOTE: This is not available to private colleges, of course, but 17 USC 504(c)(2) “good faith fair use” avoidance of statutory liability is absolutely still available to nonprofit educational institutions ***
  • If publishers do not have copyright transfer agreements, they do not own the works. [2012 decision, affirmed 11th Cir 2014]
  • Copies that were not accessed at all were de minimis — not even to be considered in infringements. [2012 decision, aff’d 11th Cir 2014] 
    • In other words, payments by # of students enrolled is not an appropriate metric, if # of students accessing is routinely and habitually much lower than # of students enrolled. IMO we would be justified in considering licensing based on total use after the fact, rather than potential use before the fact. 

Fair use specific holdings:

  • The coursepack cases, which applied to for-profit institutions, do not apply to university libraries / course management systems. [2012 decision, aff’d 11th Cir 2014] 
    • In other words, electronic reserves and faculty uploads into course management systems can be fair use, upon consideration of the four factors. 
  • The Classroom Guidelines are not controlling — we should rely on fair use as set forth in the statute (17 USC 107) and in case law  [2012 decision, aff’d 11th Cir 2014]
  • The first factor of fair use (“purpose and character of the use”) favors universities because it is “nonprofit educational”   [2012 decision, aff’d 11th Cir 2014]
  • The third factor (“amount and substantiality” taken) is quantified based on the entire length of the work  [2012 decision, aff’d 11th Cir 2014]
  • Excerpts do not substitute for entire works (first, third, fourth factors)   [2012 decision, aff’d 11th Cir 2014]
  • The fourth factor (“effect on the market”) favors universities when an appropriate license is not available (e.g., a digital license for an excerpt)  [2012 decision, aff’d 11th Cir 2014]
  • The fourth factor strongly favors rightsholders when an appropriate license is available.  [2012 decision, aff’d 11th Cir 2014]
    • In other words we should be checking for licensing availability.
  • The availability of such licenses must be shown by plaintiffs. [2012 decision, aff’d 11th Cir 2014]  
    • In other words, the rightsholders need to be making appropriate licenses available.
  • The analysis of fair use is “holistic” and not “quantitative”; there are no black line rules or fixed percentages; each factor has to be weighed together. [11th Cir 2014, and 11th Cir. 2018]
    • In other words, fixed percentage rules such as “one chapter or ten percent” are not the law. Institutions must encourage and support instructors to consider the quantity in light of the pedagogical purpose, with attention to license availability.
  • Having policy guidance and educational outreach to instructors is absolutely critical to demonstrating that we are operating in good faith.  [2012 decision, aff’d 11th Cir 2014]  
    • The plaintiffs were asking for ongoing supervision of GSU, and they did not get that. That’s actually also a really big win, because the plaintiffs were asking for an intrusive, onerous system of reporting & supervision. But the District Court held, again and again, that GSU was basically acting in good faith, and doing education & policy. So the take-home — I’m going to say it again — is that policy guidance and educational outreach to instructors obviates the need for the ongoing supervision / reporting system that the plaintiffs wanted the court to order.

You may notice that all the significant findings were in the 2012 decision and were essentially affirmed by the 11th Cir. in 2014. That is because the 11th Circuit was, basically, fine-tuning the District Court’s decisions, reversing on details and the weight of various factors, rather than shifting the lower court judge’s substantive holdings. The main points that came out from the 11th Circuit was that this is a holistic analysis, and to moderate the District Court’s pro-GSU holdings to be slightly less pro-GSU.

In the end, out of several hundred claims that were raised at one time or another, ultimately only 99 were assessed at trial, and of those 99, only 10 were ultimately found to infringe.

  • 25 were dismissed mostly because the publishers lacked the paperwork to show that they owned the works.
  • 26 were noninfringing because students had not really accessed them (“de minimis”) or publishers did not even offer licenses to the works (fair use, fourth factor fair use failure)
  • 38 were fair use
  • 10 were infringing (not fair use, not de minimis, owned by publisher)

The library and academic communities owe Georgia State University a great deal of gratitude for fighting back when the publishers came to call. GSU’s investment means that our communities — and copyright law, more generally — won on principle, and therefore we all can continue to rely on fair use in our ereserves (and on the campus more broadly in course management systems).  

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