On October 17 the U.S. Court of Appeals for the 11th Circuit in Atlanta unanimously reversed the District Court’s ruling on the Publishers v. Georgia State University (GSU) Fair Use Case. In the suit, which was filed in April 2008, three academic publishers—Cambridge University Press, Oxford University Press, and Sage Publications—argued that Georgia State University’s use of their material for electronic course reserves exceeded fair use limitations and infringed on their copyrights. After the suit was filed, GSU changed its e-reserve policy and adopted a fair use checklist to help faculty make decisions as to how much copyrighted material they could use as part of their e-reserves. The checklist measured fair use by four factors:

• the purpose and character of use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken
• the effect of the use upon the potential market

The case was decided in May 2012, when Judge Orinda Evans of the U.S. District Court for the Northern District of Georgia, in a 350-page opinion, ruled largely in favor of the libraries. Judge Evans held only five out of the 75 alleged copyright infringement cases submitted to be infringement, with the rest falling under fair use. The publishers appealed the ruling in November 2013. The new ruling reversed the previous ruling, vacated the orders awarding costs and attorneys' fees to GSU, and remanded the case back to the district court. The opinion, written by Judges Gerald Bard Tjoflat and Stanley Marcus with a concurrence by C. Roger Vinson, criticized Judge Evans’s analysis—which used the four factors mentioned above—for having given each factor equal weight (although it found Judge Evans to be correct in examining the case on an item-by-item basis). In particular, it struck down the judge’s application of a set formula to the third factor, in which she declared fair use to be limited to 10 percent, or one chapter, of a given work. She has also been instructed to weigh the fourth factor, market harm, more heavily.

TIGHTENING THE RULES

The Association of American Publishers (AAP), in reaction to the court’s ruling, stated, “AAP believes that today’s decision will help to protect the intellectual property rights of authors and publishers who are providing students with high-quality educational materials.” However, Duke University Scholarly Communications Officer Kevin Smith told LJ that while he felt it was not the affirmation that GSU would have liked, neither is it the final word reversing the decision that the publishers would have wanted. Essentially, he feels, this reversal has tightened up the rules for finding fair use, although because the court ruled against putting a numerical limit on what constitutes fair use, Judge Evans will have more leeway on that particular factor in her decision. As Smith described the scenario to LJ, “The Judge will go through it again, poor woman—she wrote a [350]-page opinion last time—and she’ll find some fair use and some infringement.” Smith predicts it will be something of a split decision: “The publishers win some, GSU wins some.” “For those of us struggling to make responsible fair use decisions on a day-to-day basis,” Smith said in a blog post on October 19, “this Appeals Court ruling doesn’t actually change much. The message for us is that it could have been much worse, the case is far from over, and we must just keep on making the same kind of reasoned and reasonable fair use decisions we have been making for years.” “I think probably the publishers are happy at this point,” Smith told LJ immediately following the ruling, “but not as happy as they hoped they would be. And GSU is unhappy, but not as unhappy as [it] might have been.” For further updates and commentary on the case, follow Gary Price’s coverage at INFOdocket.