SCOOP: The Finish Line for the Georgia State University Copyright Case

At the end of September, the district court in Cambridge University Press et al v. Becker, better known as the Georgia State case, entered its final order. The final order disposed of the lingering question about attorney’s fees and gave concluding directions to the university. Once October 30th passed without further filing from the publishers, the case officially and finally ended twelve years of litigation.

The Race: A Timeline of the Lawsuit

2008 – Three scholarly publishers filed suit against officials at Georgia State University (GSU) alleging that the university library’s scanning and posting of chapters from the publishers’ various books infringed upon their copyright. Georgia State asserted that their actions fell within the statutory exception of fair use.

2012 – The federal district court rendered a judgment that was largely in favor of GSU. The court rejected the publishers’ argument that analogized electronic course reserves to the coursepack cases of the 1990s. The district court further rejected application of the 1976 “classroom guidelines.”

2014 – Following the publishers’ appeal, the 11th Circuit Court of Appeals (hereafter “appellate court”) affirmed the district court’s rejection of the commercial coursepack analogy, but it rejected other pieces of the district court’s analysis. It disagreed with the district court’s determination that all scholarly works were by definition informational. The appellate court also rejected the district court’s assertion of a new numerical guideline. The appellate court sent the case back to the district court with instruction that it give greater attention to the question of economic harm to the publishers.

2016 – The district court rendered its second judgment in the case, again overwhelmingly in favor of GSU, in an opinion that employed more of a case-by-case analysis of the works that had been scanned and posted. The district court’s analysis focused extensively on the third and fourth factors of fair use. Specifically, the district court evaluated each scan as to whether the quantity selected was pedagogically appropriate for the course. The district court further conducted extensive financial analysis for each book scanned to determine the potential for any market harm to the publishers by GSU’s use of the works. Publishers once again appealed.

2018 – More than a year after oral arguments were heard in the appellate court, the appellate court issued a ruling that again sent the case back to the district court directing it to utilize a quantitative approach when applying fair use and apply individual analysis to each claim of infringement, omitting any consideration of price when evaluating the third factor (quantity of the work used).

2020 – The district court issued its third judgment in the case in March, reanalyzing the claims of infringement according to the most recent appellate court instruction, and again judgment was rendered overwhelmingly in favor of GSU. The court issued its final order in the case at the end of September resolving the outstanding question of attorney’s fees and directing Georgia State to maintain copyright policies, and inform their faculty of the same, that were consistent with the prior holdings of the appellate court.

Post-Race Commentary: Fair Use After Georgia State

Under the first factor of fair use, libraries are to consider the purpose of the proposed use. Analysis of this factor frequently turns on a determination of whether a proposed use is transformative (e.g., work adapted for a new purpose or unexpected audience) as opposed to mirror-image copying. In this case, the court repeatedly found in favor of GSU because all uses were exclusively nonprofit and educational or for the sole purpose of teaching students in classes at a nonprofit educational institution. The lack of transformative use was not dispositive.

Factor two of fair use looks at the nature or subject matter of the work. Fair use generally favors non-fiction and fact-based works. Other conditions that tend to favor fair use with regard to this factor include whether the work is published (e.g., not a manuscript or personal letter) and whether it is a non-consumable work (e.g., not a workbook or exam form). Under the rulings made in the Georgia State case, the court determined, however, that this factor can weigh against fair use if the work principally comprises evaluative, analytical, or subjectively descriptive material that surpasses the bare facts necessary to communicate information or derives from the author’s experiences or opinions.

The amount of the work used is examined under the third factor of fair use. As noted above, both courts rejected application of any numerical guidelines, such as counts or percentages of words, pages, or chapters. This factor weighs in favor of fair use if the excerpts are decidedly small and generally fill a legitimate pedagogical purpose and are narrowly tailored to accomplish that purpose. The lengthier the excerpt, the more the use could potentially harm the market for the work. Generally, use of a single chapter or less of a work is more likely to be a fair use than a use of multiple chapters. Ultimately, analysis of the third factor will vary based on the effect of the favored nonprofit educational purpose of the use determined under the first factor in addition to the impact of the unfavored market substitution as that is evaluated under the fourth factor.

In evaluating the fourth factor, libraries need to consider current or potential market harm that would result from the use, particularly if the use were to become widespread. In the Georgia State case, the court identified the entire market to include any market for sales of the full books and any market for licensing portions of the work for placement on e-reserve; however, the court reached different conclusions about different works, depending on whether the excerpts were available for sale or licensing.

Although the intent of application of the fair use statute is the weight and balance of the four factors together, the court in the Georgia State case did not weigh the factors equally. The courts’ opinions demonstrated that the fourth factor carried the most weight, although not so much weight that it was outcome determinative. Another takeaway from the courts’ analysis is that when the works are published, non-consumable, and non-fictional works, the second factor (nature of the work) carried little weight.

Further Reading

• The SCOOP first covered the Georgia State case in August 2018. Revisit this post for additional strategies libraries can employ when handling e-reserves and other electronic course material postings.
• Publishers Weekly provided coverage of the case throughout its duration. Read the final summation of the case here. The BYU Copyright Licensing Office also offered a summary of this twelve-year litigation.
• GSU maintains an extensive LibGuide on the case, including links to the full text of the courts’ opinions as well as news stories covering the case during the last twelve years.
• Want to learn more about copyright and fair use? Register for Atla’s four-part copyright webinar series starting in January 2021.

The SCOOP, Scholarly COmmunication and Open Publishing, is a monthly column published to inform Atla members of recent developments, new resources, or interesting stories from the realm of scholarly communication and open access publishing.