Georgia State E-Reserves Case What’s new, and what does it mean for libraries? Laura Quilter, UMass Amherst ALA’s CopyTalk Series, Jan. 8, 2015

News!  En banc review denied (Jan. 2, 2015)  What’s next?  Supreme Court cert. – 50/50 to be filed;.0001% chance of being granted  Remand to District Court – ordered, but …  Settlement – Talks likely to happen as soon as cert. petition starts to wind down. #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk2

Timeline  2008/04/15 – CCC/AAP-backed plaintiffs Cambridge University Press, Oxford University Press, & Sage filed suit against Georgia State Univ. for ereserves policy  2009/02/17 – GSU implements fair use checklist  2010/08/20 – 126 claimed infringements  2010/09/30 –Claims reduced to contributory infringement; sovereign immunity applied; only post-2009 claims relevant; infringement & fair use to be analyzed work-by-work  2011/03/15 – 99 claimed infringements.  2011/06/01 – 75 claimed infringements (-25, +1) #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk3

Timeline  2012/05/11 – Lower Court Decision: 70/75 were non-infringing  2012/08/10 – Attorneys’ fees awarded to “prevailing party” GSU  2013/11/19 – Oral argument in 11 th Circuit  2014/10/17 – 11 th Circuit opinion  2015/01/02 – En banc petition & rehearing denied #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk4

District Court Four years after suit was initially filed in April 2008, 5 uses were found infringing out of the final 75 alleged (and out of more than 120 alleged over time), and defendant GSU was awarded attorneys’ fees as the “prevailing party”. The case resulted in multiple published decisions, including the 300+ page 2012/05/11 trial decision. These decisions included LOTS of holdings, and infringement / fair use analyses of 74 individual works. Totals: 18 no copyright shown; 9 de minimis; 42 fair use; 5 not fair use (infringements) #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk5

Generally applicable holdings:  Sovereign immunity & post-policy period  Work-by-Work analysis  GSU approach to % of work: Count tables, indexes, TOC. (May not always be applicable.)  Classroom guidelines not binding  Rejected “subsequent semester” rule  Fair use analysis: Coursepack cases different  Policy was a “good faith effort”, not a sham  Attorneys’ fees for GSU #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk6

Holdings that knocked out chunks of claims:  Plaintiff publishers must show ownership (26 works, 18 in the final set of 74)  Some access and use must be shown, or de minimis (9 works) #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk7

Fair use analysis  1st factor: Purpose & character of the use  Not transformative  Nonprofit educational use, + GSU  Distinguished coursepack cases  2d factor: Nature of the work  Nonfiction & educational, + GSU #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk8

Fair use analysis  3d factor: Amount & substantiality taken  Classroom guidelines not binding  Quantitative, from GSU guidelines  “What was the complete work” favored GSU; plaintiffs didn’t challenge GSU’s approach in time for Court to decide.  “decidedly small” amounts: 1 chapter or 10%  BUT up to 18% was a fair use even though not “decidedly small”, because no licensing revenue lost #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk9

Fair use analysis Fair use analytic points:  4 th factor: Effect on the market  No available license, + GSU [33 works]  Available license, + publishers  License must e “readily available” at a “reasonable” price and a “convenient” format [p.89]  But since Licensing Revenue such a small % not a very big plus! #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk10

Take-Home Points  Sovereign immunity  De minimis  Nonprofit educational use = F1 ++ fair use  No license = F4 ++ fair use  “Decidedly small” = F3 ++ fair use  No license OR “decidedly small” = FU  License AND NOT “decidedly small” = !FU #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk11

11 th Circuit Predictably, the plaintiffs appealed (Sept. 2012). Briefing (May 2013) & oral arguments (November 2013) followed. The oral arguments left attorneys on all sides a little puzzled, but library & university-side attorneys were more than puzzled: they were gloomy & pessimistic. The 11 th Circuit’s decision (2014/10/17), issued almost a year after oral arguments and 6 ½ years after suit filed, was a surprise, and a pleasant one for the library & university community. #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk12

11 th Circuit  Reversed, finding J. Evans’ fair use analysis needed to be redone. Also, a concurrence.  GSU lost their attorney’s fees awards  BUT “fair use” was really a win! And “concurrence” was actually a lot more like a dissent. How?  Key holdings on 1 st & 4 th factors were all affirmed; minor holdings were not overturned. “Reversal” had to do with technicalities of how balanced – technicalities that are important, but won’t necessarily change the outcoming significantly. #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk13

11 th Circuit analysis  Holdings on infringement analysis were not revisited  No ownership shown on multiple allegations  “de minimis” where no views shown  Infringement & fair use still have to be work-by- work analysis  Concurrence would have said the whole enterprise was infringing  Fair use analysis was tweaked  Evans was right on F1 & F4  Evans was wrong on F2 & F3  Overall weighing was wrong #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk14

11 th Circuit Fair Use  Evans had done a “mechanical” balancing. 11 th Circuit said it needs to be “holistic”, in light of purposes of copyright & fair use.  Lots of discussion of the overall purposes of copyright, which is always helpful to universities. #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk15

11 th Circuit Fair Use: F1  Factor 1: Purpose & Character of the Use  Reserves/CMS still not transformative [Dist., 11 th ]  11 th Cir: Evans was correct that nonprofit educational use favors fair use on F1  Note: It’s not just whether you’re a nonprofit educational institution; you have to be making a nonprofit educational USE.  Concurrence, in line with plaintiffs and amici, thought the majority was WRONG. They argued that university ereserves/CMS were analogous to the coursepack cases (for-profit third-parties making copies). #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk16

11 th Circuit Fair Use: F1  11 th Cir: Evans was correct that nonprofit educational use favors fair use on F1  This is HUGE. CCC/AAP/publishers argued that uses had to be “transformative”. Along with HathiTrust, this helps to reinvigorate “purposes”. This is very, very helpful to those of us who have the positive purposes that can be favored even if not transformative. Courts (like 7 th Circuit) that are skeptical or conservative about transformativeness can still find positives for fair use in Factor 1. Yaay! #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk17

11 th Circuit Fair Use: F2  Factor 2: Nature of the original work.  J. Evans had said nonfiction & educational, so a ++ on fair use.  11 th Circuit said not so fast– there’s still a lot of creative content. Lower court should review how much non-copyrightable, factual material (charts, data) versus creative material (analytic).  BUT, this is not a very important factor.  My take: IMO, the court was off here. Non- copyrightable content is a separate consideration. It’s error to reduce nature of work to a non- copyrightable / copyrightable distinction. #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk18

11 th Circuit Fair Use: F3  Factor 3: Amount & substantiality taken  J. Evans had said “decidedly small” (1 chapter or <10%) is ++;  11 th Circuit said this is too mechanical; amount has to be considered in light of purpose of use, and overall purpose of copyright / fair use  My take: Folks on the ground like bright lines & quantities. As a legal matter, this is more correct, but harder to manage. Best use? Treat small quantities as a “safe harbor”, and scrutinize purpose & character of use for large quantities. #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk19

11 th Circuit Fair Use: F4  Factor 4: Effect on the market  J. Evans had said if no license available, ++ for fair use on F4  11 th Circuit agreed, and emphasized importance of licensing revenues to publisher, in assessing this factor.  Burden of proof: 11 th Circuit affirmed Evans on licensing burden of proof -- it’s appropriate to require publishers to show evidence of licensing, even though defendants are generally required to prove fair use.  Concurrence disagreed—There could always be a license! #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk20

11 th Circuit Fair Use: F4  My take: The majority talked quite a lot about avoiding the circularity of the “there could always possibly be a license” problem, presumably in response to J. Vinson’s concurrence (and similar criticisms of Texaco v. Am. Geophysical Union).  In the end, they went with Evans’ analysis, which is a short-term win for universities.  This gives CCC & publishers more weight behind developing licensing, but in practice, this will be challenging for exactly the same reasons that many of the allegations were tossed out – no ability to prove who actually owns the work. In other words, a species of orphan works concerns.  This should also help drive the OA movement.  Nancy University of Minnesota correctly pointed out that individuals have no access to the licensing market info. Libraries can see if it’s available at all, but can’t assess importance to the publishers. Individual faculty members will be completely out of luck. #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk21

Take-Home Points  Emphasis on holistic analysis: Not “mathematical”, mechanical, F1+F2+F3+F4  F1: Nonprofit uses ARE favorable to fair use [Evans was right]  F1: Non-transformative, still. [Evans was right]  F2: Nature of the work: Needs to consider factual versus creative content within the work [Evans was wrong, but it may not matter]  F3: No mechanical limits! [Evans was wrong]  F4: Availability of license is key [Evans was right]  Classroom Guidelines are not law  Faculty CMS & library ereserves are different than copy shops  Ereserves & CMS are not categorically infringing; assessments must be case-by- case #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk22

#JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk23 Leandro Inocencio, “Counter Balance” (2012). CC-BY-SA 3.0. Sourced from Wikipedia, ncing_(Counter_Balance).jpg Where does this leave course reserves/ CMS? Emphasis on holistic analysis, information about licensing. Makes it harder for libraries & MUCH harder for faculty. Difficulty indirectly helps CCC.

#JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk24 Logos are used under TM fair use and copyright fair use. Where does this leave CCC & publishers? Appeal to Supreme Court? Unlikely to be granted. Remand or settlement. This is about where the CCC/AAP’s counterparts in other countries are at, too: Israel, etc., are one way or other implementing fair use

Timeline  2008/04/15 – CCC/AAP-backed plaintiffs Cambridge University Press, Oxford University Press, & Sage filed suit against Georgia State Univ. for ereserves policy  2012/05/11 – Lower Court Decision: 70/75 were non-infringing  2014/10/17 – 11 th Circuit opinion  2015/01/02 – En banc petition & rehearing denied  SCOTUS cert. petition, remand, settlement … #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk25

Questions? #JeSuisCharlie 1/8/15Laura Quilter, Umass / ALA CopyTalk26