How much can I post? Impact of Georgia State (Cambridge University Press v. Becker (N.D. Ga 2012)) on Higher Education

Facts In 2008, Oxford University Press, Cambridge University Press and Sage Publications sue Georgia State University and several officers “in responsibility” – president, provost, dean of libraries and board of regents for injunctive relieveIn 2008, Oxford University Press, Cambridge University Press and Sage Publications sue Georgia State University and several officers “in responsibility” – president, provost, dean of libraries and board of regents for injunctive relieve University had provided students online access to unauthorized excerpts from scholarly books.University had provided students online access to unauthorized excerpts from scholarly books. In 2009, university responds by providing copyright training and implementing a “fair use checklist” for faculty to submit when making material available online.In 2009, university responds by providing copyright training and implementing a “fair use checklist” for faculty to submit when making material available online. At training, faculty were told “there was no across-the-board answer to [the question of amount], but that under fifteen percent would likely be safe and that under ten percent would be ‘really safe’.”At training, faculty were told “there was no across-the-board answer to [the question of amount], but that under fifteen percent would likely be safe and that under ten percent would be ‘really safe’.” Not satisfied, publishers continue suit on basis that policy allows continued infringement and set forth 99 instances (later reduced to 75 instances) of infringement of copyright of scholarly books (which were not intended as textbooks)Not satisfied, publishers continue suit on basis that policy allows continued infringement and set forth 99 instances (later reduced to 75 instances) of infringement of copyright of scholarly books (which were not intended as textbooks)

Facts - Ratio of 75 Chapters or Parts Used 2/252/25 2/92/9 2/82/8 2/102/10 3/123/12 2/102/10 3/93/9 2/152/15 4/444/44 7/447/44 3/363/36 2/362/36 2/302/30 2/102/10 2/152/15 56 excerpts were one chapter or less from 54 books56 excerpts were one chapter or less from 54 books 4 books not divided into chapter4 books not divided into chapter

Georgia State - Impact Desired by Plaintiff Kevin Smith, Duke University, Office of Scholarly Communications – see blog at Proposed injunction Define fair use by Classroom Copying GuidelinesDefine fair use by Classroom Copying Guidelines o Lesser of 10% or 1000 words Limit fair use in any class to only 10% of course readingsLimit fair use in any class to only 10% of course readings o 90% must be purchased by students or licensed Give publishers access to LMS sitesGive publishers access to LMS sites

Doctrinal Issues Sovereign ImmunitySovereign Immunity Fair UseFair Use –Nature of the Use (Educational, Commercial, Transformative Use) –Nature of the Work –Amount of the Use –Impact on the Market

Fair Use (Factors 1 and 2) Nature of UseNature of Use –Placing an excerpt of a book on electronic reserve is not “transformative” use –But use was educational Nature of WorkNature of Work –Works were informational

Fair Use – Factor 3 Amount of UseAmount of Use –Di minimis use when there is now downloading by students –Access should be limited to students in class; and then only for the term of the course –University criticized for not giving guidance as to amounts –Court refused to apply Classroom Guidelines

Fair use – Amount of Use 8 Rejected Classroom Guidelines as Law, howeverRejected Classroom Guidelines as Law, however Ten percent of a work was acceptable as fair use if the book had fewer than 10 chaptersTen percent of a work was acceptable as fair use if the book had fewer than 10 chapters However, use cannot be the “heart of the work”However, use cannot be the “heart of the work” A single chapter was considered fair use for books that contained 10 or more chaptersA single chapter was considered fair use for books that contained 10 or more chapters Percentages should be calculated based on the total number of pages in the bookPercentages should be calculated based on the total number of pages in the book Individual chapters by different authors in an edited volume should by counted by the same method, and not as if each were an individual workIndividual chapters by different authors in an edited volume should by counted by the same method, and not as if each were an individual work Rejected the “subsequent semester” rule (might be able to use the same material more than once)Rejected the “subsequent semester” rule (might be able to use the same material more than once)

Fair Use – Factor 4 9 Effect on the MarketEffect on the Market Checklist also failed to provide faculty guidance as to harm on the marketChecklist also failed to provide faculty guidance as to harm on the market Was there a “readily available” and “reasonably priced” license for reproduction of the excerpt in digital form?Was there a “readily available” and “reasonably priced” license for reproduction of the excerpt in digital form? Were licensing fees for excerpts in digital form an important part of the value of the original work in question?Were licensing fees for excerpts in digital form an important part of the value of the original work in question? o Usually not the case o When license not available, the amount of the work used is less valuable

De Minimis Example – Pronunciation Games Of 19 uploaded pages, only 11 pages were copied with permissionOf 19 uploaded pages, only 11 pages were copied with permission 16.98% of the work16.98% of the work All three hits to the “ERES” course system for the work were probably from staff librarian and instructor.All three hits to the “ERES” course system for the work were probably from staff librarian and instructor. Court finds de minimis harm in context of fair use analysisCourt finds de minimis harm in context of fair use analysis

No Fair Use Example 1 – Sage Handbook Qualitative Research 3d First two factors favor defendants.First two factors favor defendants. Professor Kaufmann uploaded 4 chapters representing 8.38%Professor Kaufmann uploaded 4 chapters representing 8.38% Book had more than ten chaptersBook had more than ten chapters Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs.Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs. No harm to book sales, but plaintiff showed “ready marked for digital excerpts.... through CCC and Sage’s in house program.”No harm to book sales, but plaintiff showed “ready marked for digital excerpts.... through CCC and Sage’s in house program.” Court found “very small, but actual, damage.”Court found “very small, but actual, damage.” Court found potential damages from “lost permissions income” because of “widespread use of similar unlicensed excerpts.Court found potential damages from “lost permissions income” because of “widespread use of similar unlicensed excerpts. Factor four strongly favors plaintiff.Factor four strongly favors plaintiff. To break the tie and find no fair use, court reweighted the factors. Found Kaufman “significantly” exceeded the chapter limit, that the excerpts were an important part of the value of the work ($11, from Sage in 2009), and that there was “substantial demand” for excerpts.To break the tie and find no fair use, court reweighted the factors. Found Kaufman “significantly” exceeded the chapter limit, that the excerpts were an important part of the value of the work ($11, from Sage in 2009), and that there was “substantial demand” for excerpts.

Fair Use Example 1 – Handbook of Critical and Indigenous Methodologies First two factors favor defendants.First two factors favor defendants. Professor Kaufmann uploaded two chapters or 5.98% of the book.Professor Kaufmann uploaded two chapters or 5.98% of the book. Book had more than ten chaptersBook had more than ten chapters Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs.Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs. No harm to book sales, but plaintiff showed “ready marked for digital excerpts.... Through CCC and Sage’s in house program.”No harm to book sales, but plaintiff showed “ready marked for digital excerpts.... Through CCC and Sage’s in house program.” Court found “very small, but actual, damage.”Court found “very small, but actual, damage.” Court found potential damages from “lost permissions income” because of “widespread use of similar unlicensed excerpts.Court found potential damages from “lost permissions income” because of “widespread use of similar unlicensed excerpts. Factor four strongly favors plaintiff.Factor four strongly favors plaintiff. To break the tie and find fair use, court reweighted the factors. Court found it “unlikely” that the excerpts were an important part of the value of the work (about $538 in 2009). Consequently, and there was no “significant demand” for excerpts.To break the tie and find fair use, court reweighted the factors. Court found it “unlikely” that the excerpts were an important part of the value of the work (about $538 in 2009). Consequently, and there was no “significant demand” for excerpts.

No Fair Use Example 2 – Handbook of Qualitative Research 2d First two factors favor defendants.First two factors favor defendants. Professor Kaufmann uploaded 2 chapters representing 3.01%Professor Kaufmann uploaded 2 chapters representing 3.01% Book had more than ten chaptersBook had more than ten chapters Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs.Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs. No harm to book sales, but plaintiff showed “ready marked for digital excerpts.... through CCC and Sage’s in house program.”No harm to book sales, but plaintiff showed “ready marked for digital excerpts.... through CCC and Sage’s in house program.” Court found “very small, but actual, damage.”Court found “very small, but actual, damage.” Court found potential damages from “lost permissions income” because of “widespread use of similar unlicensed excerpts.Court found potential damages from “lost permissions income” because of “widespread use of similar unlicensed excerpts. Factor four strongly favors plaintiff.Factor four strongly favors plaintiff. To break the tie and find no fair use, court reweighted the factors. Found Kaufman “significantly” exceeded the chapter limit, that the excerpts were an important part of the value of the work ($3, from in-house permissions in 2009), and that there was “substantial demand” for excerpts.To break the tie and find no fair use, court reweighted the factors. Found Kaufman “significantly” exceeded the chapter limit, that the excerpts were an important part of the value of the work ($3, from in-house permissions in 2009), and that there was “substantial demand” for excerpts.

No Fair Use Example 3 – Handbook of Qualitative Research 3d – 2 nd Instance First two factors favor defendants.First two factors favor defendants. Professor Kaufmann uploaded 7 chapters or 12.29%Professor Kaufmann uploaded 7 chapters or 12.29% Book had more than ten chaptersBook had more than ten chapters Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs.Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs. No harm to book sales, but plaintiff showed “ready marked for digital excerpts.... through CCC and Sage’s in house program.”No harm to book sales, but plaintiff showed “ready marked for digital excerpts.... through CCC and Sage’s in house program.” Court found “very small, but actual, damage.”Court found “very small, but actual, damage.” Court found potential damages from “lost permissions income” because of “widespread use of similar unlicensed excerpts.Court found potential damages from “lost permissions income” because of “widespread use of similar unlicensed excerpts. Factor four strongly favors plaintiff.Factor four strongly favors plaintiff. To break the tie and find no fair use, court reweighted the factors. Found Kaufman “dramatically” exceeded the chapter limit, that the excerpts were an important part of the value of the work ($11,126 from in-house permissions in 2009), and that there was “substantial demand” for excerpts.To break the tie and find no fair use, court reweighted the factors. Found Kaufman “dramatically” exceeded the chapter limit, that the excerpts were an important part of the value of the work ($11,126 from in-house permissions in 2009), and that there was “substantial demand” for excerpts.

Fair Use Example 2 – Assessing Speaking First two factors favor defendants.First two factors favor defendants. Professor Kim uploaded two chapters or 29.82%Professor Kim uploaded two chapters or 29.82% Book had eight chaptersBook had eight chapters Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs.Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs. No harm to book sales (still in print), because court inferred that professor would not have required students to purchase the whole.No harm to book sales (still in print), because court inferred that professor would not have required students to purchase the whole. Court found that there was no evidence that “digital excerpts were available for licensing”Court found that there was no evidence that “digital excerpts were available for licensing” Factor four favors defendantsFactor four favors defendants Court finds fair use.Court finds fair use.

Fair Use Example 3 – Living Ethics First two factors favor defendants.First two factors favor defendants. Professor Freeman uploaded parts of two chapters or 3.56%Professor Freeman uploaded parts of two chapters or 3.56% Book had 10 chaptersBook had 10 chapters Court ruled that amount “was decidedly small” and that factor three weighed in favor of the Plaintiffs.Court ruled that amount “was decidedly small” and that factor three weighed in favor of the Plaintiffs. No harm to book sales (still in print), because court inferred that professor would not have required students to purchase the whole.No harm to book sales (still in print), because court inferred that professor would not have required students to purchase the whole. Court found that there was no evidence “of a ready market for electronic excerpts because there is no avenue through which Defendants could obtain permission.... “Court found that there was no evidence “of a ready market for electronic excerpts because there is no avenue through which Defendants could obtain permission.... “ Factor four favors defendantsFactor four favors defendants Court finds fair use.Court finds fair use.

Fair Use Example 4 – Regimes and Democracy in Latin America First two factors favor defendants.First two factors favor defendants. Professor McCoy uploaded parts of introduction and one chapter or 12.71%Professor McCoy uploaded parts of introduction and one chapter or 12.71% Book had less than 10 chaptersBook had less than 10 chapters Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs.Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs. No harm to book sales (still in print), because court inferred that professor would not have required students to purchase the whole.No harm to book sales (still in print), because court inferred that professor would not have required students to purchase the whole. Court found that there was no evidence “that digital excerpts from this book were available for licensing in 2009.”Court found that there was no evidence “that digital excerpts from this book were available for licensing in 2009.” Factor four favors defendantsFactor four favors defendants Court finds fair use.Court finds fair use.

No Fair Use 4 – The Power Elite First two factors favor defendants.First two factors favor defendants. Professor Harvey uploaded 2 chapters or 12.5%Professor Harvey uploaded 2 chapters or 12.5% Book had more than ten chaptersBook had more than ten chapters Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs.Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs. No harm to book sales, but plaintiff showed “ready marked for digital excerpts... through CCC.”No harm to book sales, but plaintiff showed “ready marked for digital excerpts... through CCC.” Court found “very small, but actual, damage.”Court found “very small, but actual, damage.” Court found potential damages from “lost permissions income” because of “widespread use of similar unlicensed excerpts.Court found potential damages from “lost permissions income” because of “widespread use of similar unlicensed excerpts. Factor four strongly favors plaintiff.Factor four strongly favors plaintiff. To break the tie and find no fair use, court reweighted the factors. Found the book was not strictly and academic book, but a “trade book” with “each chapter lead[ing] to the next.” The selected chapters represented the “heart of the book” because they “sum up the ideas.” Thus, factor 3 has more weight.To break the tie and find no fair use, court reweighted the factors. Found the book was not strictly and academic book, but a “trade book” with “each chapter lead[ing] to the next.” The selected chapters represented the “heart of the book” because they “sum up the ideas.” Thus, factor 3 has more weight.

No Fair Use Example 5 – Utilization-Focused Evaluation First two factors favor defendants.First two factors favor defendants. Professor Harvey uploaded 2 chapters or 8.28%Professor Harvey uploaded 2 chapters or 8.28% Book had more than ten chaptersBook had more than ten chapters Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs.Court ruled that amount “was not decidedly small” and that factor three weighed in favor of the Plaintiffs. No harm to book sales (book was out of print), but plaintiff showed “ready marked for digital excerpts... through CCC....”No harm to book sales (book was out of print), but plaintiff showed “ready marked for digital excerpts... through CCC....” Court found “very small, but actual, damage.”Court found “very small, but actual, damage.” Court found potential damages from “lost permissions income” because of “widespread use of similar unlicensed excerpts.Court found potential damages from “lost permissions income” because of “widespread use of similar unlicensed excerpts. Factor four strongly favors plaintiff.Factor four strongly favors plaintiff. To break the tie and find no fair use, court reweighted the factors. Found that the excerpts were an important part of the value of the work ($1854 from Sage in 2009, $15, in total over several years, plus some $ from CCC and APS), and that there was “substantial demand” for excerpts.To break the tie and find no fair use, court reweighted the factors. Found that the excerpts were an important part of the value of the work ($1854 from Sage in 2009, $15, in total over several years, plus some $ from CCC and APS), and that there was “substantial demand” for excerpts.

Final Result Of 75 cases, only five were infringing and were found to be cause harm to the market based upon university policy. These were instances when a convenient and commercially reasonable licenses was available.

When did the Court Not find Fair Use? Of the 75 instances before the Court, this chart compares positive four fair use examples (green circles) with five instances where no fair use was found (red squares)

Sources Brandon Butler, ALR Issue Brief, GSU Fair Use Decision Recap and Implications, Kevin Smith, More on GSU and the publisher response, the-publisher-response the-publisher-response the-publisher-response Kevin Smith, The GSU decision — not an easy road for anyone, not-an-easy-road-for-anyone not-an-easy-road-for-anyone not-an-easy-road-for-anyone Anandashankar Mazumdar, Students’ Access to Excerpts was Fair Use When Digital Excerpt Licensing Unavailable, Bloomberg BNA Patent Trademark & Copyright Law Daily (May 22, 2012)