The GSU decision is out — here’s a link to the PDF.
Don’t panic! It’s a reversal on fair use, but if you read more deeply, it’s actually pretty good. My notes (written for my library director and colleagues, on a first quick read, not yet edited) are below. I am posting them anyway, in lieu of writing something more formal, because, frankly, I’m not going to have time to write up anything more formal for a few days — still prepping for Open Access Week!
(I’ve moved the “Further Reading” links to the bottom, since they were getting rather lengthy.)
GSU *looks* to have lost on appeal, because aspects of the fair use holding were reversed, and so the attorney’s fees award was reversed. But if you read a little more deeply, you see that
(1) all the big pro-GSU decisions in the fair use analysis that the lower court made were affirmed, actually or in substance; and
(2) the ways that the court corrected the district court will not, on balance, do much to harm educators, and in one respect may be very helpful.
First factor (“purpose and character of the use”)
– Like the lower court, the 11th Circuit said ereserves was not transformative.
– Like the lower court, the 11th Circuit (majority) said that nonprofit educational use was tilted toward fair use. This is great, I think. I’m very very happy about this.
Second factor (“nature of the work”)
– The Court reversed the lower court on the 2nd factor, saying that the lower court was wrong to presume that nonfictional works tend more towards fair use. But then they said that this factor wasn’t very important in this case.
– They talked about distinguishing between analysis and data, which I think is an unfortunate direction, but I have trouble seeing how it will make much of a difference in the near term to ereserves/courseware uses — especially given the emphasis on how unimportant this factor is.
Third factor (“amount and substantiality taken”)
– The Court said that the lower court was in error in establishing a fixed analysis — 10% or 1 chapter. That’s great, actually, because that was a troubling part of the lower court’s analysis. Moreover, this was good because the 11th Circuit said the lower court can’t just do it arithmetically, but has to actually look at the specific amount, the substantiality, and look at it individually for each use. The publishers definitely don’t want this — as soon as it gets into the details, and the facts of how works are used in the classroom, it starts to look better for faculty. And this is something that we can really help faculty with.
Needless to say, this sort of arithmetic formula is what’s included in the classroom guidelines, which is what the publishers wanted. So another win for us.
Fourth factor (“effect on the market”)
– The Court said the lower court got some things wrong here on a technical basis but basically did the analysis right in the end. In other words, the lower court gave a pass to GSU if there was no available license, and the 11th Circuit said that was the right approach.
– There was discussion about the burden of proof here. The publishers argued that by being forced to show they did or did not have licensing available, that was an unfair burden of proof; the 11th Circuit said it was fine, because the publishers are the only ones with that information, and the overall burden on this factor & fair use defense as a whole is still with the alleged infringer. (If plaintiff shows they had made licenses available, then defendant has to show why their use wasn’t a harm to the market.) That’s what CCC wants, of course, but that’s not news to anybody, and doesn’t change anybody’s behavior.
– The court even went out of its way to note that the mere existence of a license, or failure to get a license, doesn’t end the inquiry. I think that’s helpful.
The 11th Circuit also found error in the lower court’s “mechanical” assessment of the factors, weighting each of them the same, and this was part of the reversible error. But then they basically ratified the lower court’s analysis of 1 and 4; said the court got it wrong on 2 but that is not important; and on 3 said look at each one individually. That does not help the publishers, who wanted a critique of the entire ereserves / course software program. The “concurrence” makes this clear when they complain about the majority’s decision.
The 11th Circuit also found that the lower court’s consideration of various extra factors was wrong — but only because those extra factors could have fit into the four factor analysis.
The 11th Circuit did not reverse the holding that the proper calculation here was the entire work including index, table of contents, etc., rather than individual chapters of the work. For procedural reasons, sure, but a win is a win.
The majority also spurned both the classroom guidelines and the coursepack cases as NOT decisive (and noted that the coursepack cases aren’t binding in the 11th Circuit, which was a nice reminder), which is huge. Again, not what the publishers wanted, and the concurring opinion (which reads more like a dissent) was not happy about this. The Court also went out of its way to note that if the classroom guidelines were applicable, the numerical limits establish floors not ceilings.
To me, reading (skimming) the concurrence brought this into focus: The concurrence really read as a dissent. Why? Because notwithstanding the form of the opinion (reversed on fair use), on the big decisions, GSU (well, educational uses) won, and the concurrence was not happy about that.
So, I am pretty darn happy. I really thought this could have gone way south, and it didn’t, and in fact the 11th Circuit cleared up a couple of things that I wasn’t happy with (the mechanical weighting of the factors, and the objective 10% / 1 chapter rule). The outcome is a remand to reconsider the evidence in light of the new test. What does that mean?
If this actually gets back to the lower court, then the lower court will have to make a nod to the nature of the work in her analysis, looking more closely at what each type of work is. Same with amount taken. Both of these will necessarily involve closer examination of the way the work was used, because the 11th Circuit made it clear that they want close analysis of each alleged infringement, and of each factor.
This is not what the publishers want. GSU doesn’t either, of course, nobody does, but the publishers brought this suit because they wanted clear decisions that established mandatory licensing, or ratified the classroom guidelines, or defined ereserves / courseware as copyshop cases. In short, they wanted to kill ereserves / courseware. They didn’t get this, and instead they got a decision that said
- (1) classroom guidelines & copyshop cases don’t control;
- (2) nonprofit educational use is a win on the first factor even if non-transformative;
- (3) no we’re not going to give you a fixed percentage; and
- (4) if you don’t license it you can’t really complain.
They got a chump change win on nature of the work. At this point, they’re litigating over a small number of individual uses, but they can’t win what they want to win.
So, I bet this will settle. The publishers will claim victory, but they’ve lost, because they lost all their big arguments, and this decision does not kill ereserves or courseware use of content — or require that all such uses be licensed by CCC — which is what they wanted. Instead, it strongly affirms that educational uses are a big plus on the fair use factor. If there are available licenses for specific content (rarely available for monographs) then that can change things — but then, we already knew that.
So, like I said, we dodged a bullet. This could have gone so badly, and in my read, I’m pretty happy.
- Nancy Sims, 11th Circuit Rules on Georgia State Fair Use Case (Oct. 17) (h/t Kenny Crews, Sat a.m.)
- Mike Masnick, TechDirt, Appeals Court Overturns Important Fair Use Win Concerning University ‘E-Reserves’ — But Potentially For Good Reasons (Oct. 17)
- Inside Higher Ed (Oct. 18) (appears to have been revised Oct. 18)
- Chronicle of Higher Ed (Oct. 18)
- Kevin Smith, GSU appeal ruling — the more I read, the better it seems (Oct. 19)
- Peter Hirtle, GSU Ereserves and Cornell (Oct. 19)
- Publishers Weekly (Oct. 20)
- “Why Georgia State Librarians EReserve Loss Might Actually Be a Win”, Chronicle Wired Campus blog (Oct. 20)
- ARL Policy Notes (Oct. 20)
- Brandon Butler, American University (Oct. 21)
- Iris Jastram (“Pegasus Librarian”), Carleton College (Oct. 21)
- Case squib at UMass Library
- Meng Zhong, “Who Really Won? re: fair use”, National Law Review, Dec. 12, 2014.
Responses from plaintiffs and their funders: