Highlighting a number of cases and rulings covering digital fair use— including the recent Georgia State ereserves verdict as well as Authors Guild vs. Google, Authors Guild vs. HathiTrust, and AIME vs. UCLA – the “Fair Use, Intellectual Property, and New Media” panel at the ALA Annual Conference in Anaheim, CA played to a standing-room only crowd eager for expert analysis on which direction the library fair use winds are blowing. The most explicit takeaway was Duke scholarly communications officer Kevin L. Smith’s caution that the verdict in the Georgia State ereserves case is too fresh to set the benchmark for all instances of fair use. As handed down, it does not set precedent outside the Northern District of Georgia, is binding only to the suit’s parties, and will likely be subject to appeals. “We might someday in four, five, six years get a [fair use] decision that is definitive – but we don’t have that now,” said Smith. The ruling does, however, offer a positive acknowledgement that there is a fair use case for education e-reserves and uploads on course managements systems. “We can argue about the edges,” he said,  “but the judge came out and said there is fair use.” Jack Lerner, Clinical Associate Professor of Law, University of Southern California, cautioned that while the GSU case decision offers a “bright-line criterion” for the amount covered by fair use – roughly, 10% of a work or one chapter in the case of a work with more than 10 chapters – this criterion does not and should not set the standard for all library use. “One danger I think is to take that very limited 10% rule and say that’s the rule for all media,” Smith added.  “That’s not the way fair use works—it’s very context sensitive.” He advised that many cases say more than 10% can be fair use, though as always the individual circumstances were the only way to evaluate the nature and extent of a work used.

Fair use factors

The third panelist, entertainment attorney Dean Cheley, listed an exceedingly clear set of criteria for fair use defense that he gives his clients, mostly including nonfiction filmmakers:

1. Are you using the material to illustrate a specific point that you’re trying to make?
2. Are you only using so much as is necessary to make that point?
3. Is it clear to the audience what that point is?

He has used the rules as part of the risk mitigation analysis necessary to agreements between his clients and film production insurers. Cheley said librarians could use the same criteria to gauge the essentials factors in determining the context-dependent fair use arguments in cases of individual media use. Cheley also urged caution in agreeing to terms that may overreach legal obligation. As an example, he cited an instance where he inserted a single word that drastically changed the nature of the legal obligation, amending a contract to read “I will secure all permissions” to read “I will secure all necessary permissions.” ”It’s okay to say I agree to follow the US Copyright Act,” he said.

Authors Guild vs. Google, Authors Guild vs. HathiTrust

Lerner said he thought the fair use defense for Google against the suit by the Authors Guild is a slam dunk. Yet while he said the merits of the HathiTrust suit struck him as similar, he added that the legal path in front of the digital preservation organization presents many challenges. One of the major differences between the two cases is the presentation of limited text snippets for in-copyright works, versus allowing access to entire orphan works.  HathiTrust had previously proposed doing the latter if rights holders could not be located. Smith agreed that the extent of this “reasonable search” for rights holders will be critical, pointing out that HathiTrust has since suspended its search procedures in order to reexamine the process. Meanwhile, on orphan works more generally, Lerner mentioned what is likely to be an influential paper just put forward by Jennifer Urban of the University of California, Berkeley School of Law. Part of Urban’s analysis, straightforwardly titled “How Fair Use Can Help Solve the Orphan Works Problem,” is that the lack of market impact is a major pillar of the library fair use case. “I would argue there’s no market,” Lerner said, noting that by definition orphan works have no authorized agent to sell to any market.  “And if there’s no market, there’s no market harm. Orphan works represent a market failure.”

Legislation likely

The panel also speculated that there will be proposed copyright legislation in the coming year, likely after the election. This possibility may well be part of the Authors Guild’s motivation to force an outcome via the courts that would weaken the argument for a legislative solution. “After this election, you can expect to see action,” Lerner said.