A federal court in Georgia declared Georgia State University (GSU) to be the “prevailing party” in its ongoing copyright infringement battle with Cambridge University Press, Oxford University Press, and SAGE Publications ("Publishers"). GSU was sued for copyright infringement for its practice of scanning the Publishers’ works for use in course webpages, on courseweb software such as Blackboard, and its e-reserve services. In an Aug. 10, 2012 court order that closes out the trial phase of the lawsuit, the court denied the Publishers’ request that GSU maintain detailed records of its use of copyrighted works, clarified several points on the fair use of works by universities, and ordered that the Publishers pay GSU’s attorneys fees. The Publishers are now considering whether to appeal the decision.
The lawsuit was filed in 2008 in response to increasing use of scanners to copy book chapters and other material for use in university courses. Previous court decisions had determined that the creation of “coursepacks,” anthologies of selected readings that were photocopied and compiled into bound supplements for sale to students, was not considered fair use. Permission was obtained and royalties paid for copyrighted material used in coursepacks either directly through the publisher or through licensing services such as Copyright Clearance Center (CCC). By scanning materials, then making them available through course websites or the library e-reserve system, GSU faculty members bypassed traditional coursepacks and generally did not obtain permission or pay royalties for the scanned works.
The Publishers’ lawsuit claimed that there was no substantive difference between print coursepacks and the scanned materials, and they claimed copyright infringement. GSU defended itself by claiming that the scanned materials were more selective and restrictive, and that because faculty members had to evaluate fair use by using a “fair use checklist,” the use was considered to be fair. GSU also argued that neither the Publishers nor CCC had an effective and affordable mechanism for obtaining permission and paying royalties for digital excerpts from copyrighted works.
After extensive preliminary decisions and a lengthy trial, in May 2012 the court found that most of GSU’s uses of the scanned materials were fair. (The May 2012 decision is available online at www.tc.umn.edu/~nasims/GSU-opinion.pdf). The court affirmed that academic uses of copyrighted works get the highest level of fair use protection; however, there were some limits. Those limits included a restriction on how much of a book could be used (generally one chapter or no more than 10% of the books total pages), and a requirement that the faculty member or school investigate whether a license for the digital excerpt is “readily available, in a convenient format, for a reasonable fee.” If the license is available, fair use may not apply.
Based on these standards, the court found that out of 99 separate copyright claims that went to trial, only five were infringing. Some claims were rejected because the Publishers could not clearly prove that they legally held the copyright. However, most were found to be fair uses, often because of the small amounts being used and/or a digital excerpt license was not available. But because some of the infringement claims were upheld the court was required to determine an appropriate remedy.
In considering a remedy, the court requested proposals from both the Publishers and GSU. The Publishers proposed that GSU be required to maintain extensive records of its courseweb and e-reserve practices and allow the Publishers to monitor those practices. The court rejected those proposals as “burdensome and expensive,” but it did order GSU to maintain and enforce its fair use policy, including requiring faculty to complete a “fair use checklist” and investigate the availability of a digital license.
The court also clarified a few points from its earlier decision. One important factor of the fair use test is that the amount used be “decidedly small.” The court initially interpreted this to be no more than one chapter of a book, or if the book is fewer than 10 chapters, no more than 10% of the book. In its final order, the court indicated that this is an “aggregate” factor and must account for all uses from a particular book during a semester. The court also made clear that multiple chapters, even if totaling less than 10% of the book’s total page count, were not fair uses.
The court also held that books that are intended “exclusively” as works for classroom instruction are not covered by the court’s fair use holdings. The court took pains to avoid the label of “textbook,” but made it clear that the definition applied to books that are “intended solely for the use of students enrolled in classes” and did not have any significant other purpose, such as for broader research or for use by persons in a particular profession.
The court also made it very clear that its finding of fair use was “conditioned on strict observance” of requirements for limiting access to enrolled students only. The access must be password restricted and only available for the term of the course, and there must be a policy that students not distribute the materials to others.
A final component of the court’s order was a decision on awarding attorneys fees or requiring the losing party to pay the attorneys fees of the “prevailing party.” Both sides claimed to be the “prevailing party,” the Publishers on the basis of having managed to get GSU to change and tighten its copyright policy as well as success on five of its infringement claims; and GSU because it prevailed on 94 of 99 of the claims.
The court found that GSU was the prevailing party on the basis of its success in nearly 95% of the claims. Even as the prevailing party, however, the court had no obligation to award attorneys’ fees to GSU. But the judge clearly felt that the Publishers could and should have understood that bringing so many claims that it could not prove ownership of, and/or did not have a digital excerpt license for “significantly increased” the cost of the lawsuit, and justified the fee award.
After the Aug. 10 order, the Publishers’ issued a statement indicating that they believed both the original May decision and the August order contained “serious legal errors,” and that they “endanger the creation and dissemination of high-quality academic work.” As of yet, the Publishers have not decided whether to appeal the decision, although many commentators think that an appeal is likely.