Unsafe Waters-Duh…Nuh, Duh…Nuh, Duh..NuhDuhNuhDuhNuh!

Just when you thought it was safe to go back into the copyright waters, they suddenly get both murkier more turbulent than ever before. I speak of the recent appeal handed down last week, 17 October, with respect to the Georgia State University reserves case, or GSU Case. That appeal is here, all 129 pages of it.

THE ORIGINAL CASE

To refresh your memory, GSU provided what were essentially digital course packets for students to use via the library’s e-reserves. In 2008, three publishers, Sage, Cambridge, and Oxford, filed suit charging over 100 violations of fair use. In 2009, GSU revised, updated, and modified its copyright policy, requiring faculty to address the four copyright factors and so establish a good faith test of fair use compliance (the four are: why you’re using it; nature of the copyrighted work; amount of the work used and that part’s value to the whole; and the market impact of your use on the material). The infringement violations were reduced to 99 with some that eventually were dismissed, removed or thrown out, leaving about 75. The case dragged on for more than a year and in 2012, about a year after the closing arguments were made, Judge Orinda Evans handed down its 350-page decision, found here.

The short version of the story is that the case proved a huge win for GSU, libraries, fair use and the information-wants-to-be-free crowd. For publishers, it was an avalanche of a loss. All but five of the 75 were found in favor of GSU. The remaining five were essentially legal quibbles, not without merit, but hardly enough to furrow the brow.

The appeals court reexamined the case last week, or rather reached a decision last week, one that took more than a year. Some say this is a win for publishers. Some say it is and it isn’t. Frankly it depends on whom you ask. The Court writes early, “[T]he District Court found that Defendants were the prevailing party and awarded them costs and attorneys’ fees. Because we find that the District Court’s fair use analysis was in part erroneous, we reverse the District Court’s judgment; vacate the injunction, declaratory relief, and award of costs and fees; and remand for further proceedings consistent with this opinion.”

That does not sound like unmitigated good news for GSU. What it does appear to be (but see Nancy Sims’ take, Copyright Librarian at the University of Minnesota) is not an avalanche of a loss for GSU, but certainly a bit of help to publishers. Publishers by no means go everything they wanted, but neither did GSU. It lost out on the roughly $3.5 million for legal fees awarded in the earlier decision. Much remains to be seen in this case, of course, but for the time being, “fair use” remains strong but a little more difficult to read.

THE CURRENT APPEAL STATUS

The first sticking point is the four factors constituting fair use in Copyright Act of 1976. The Court wrote, “In order to make this determination, the court must carefully evaluate the facts of the case at hand in light of four considerations … codified in the Copyright Act of 1976: (1) the purpose of the allegedly infringing use, (2) the nature of the original work, (3) the size and significance of the portion of the original work that was copied, and (4) the effect of the allegedly infringing use on the potential market for or value of the original…. Here, we are called upon to determine whether the unpaid copying of scholarly works by a university for use by students—facilitated by the development of systems for digital delivery over the Internet—should be excused under the doctrine of fair use.”

GSU’s approach to fair use was to look at them, but not to take them as a whole, examining them “mechanistically,” or as the Court put it, “[T]he District Court did err by giving each of the four fair use factors equal weight, and by treating the four factors mechanistically.” And again, “Plaintiffs also argue that the District Court erred in giving each of the four factors equal weight, essentially taking a mechanical “add up the factors” approach, finding fair use if three factors weighed in favor of fair use and one against and vice versa, and only performing further analysis in case of a “tie.” We agree that the District Court’s arithmetic approach was improper….”

Next, the Court underscored the availability of copyrighted materials and the licensing that can be paid for them. When these materials were in printed form, GSU purchased permission from Copyright Clearinghouse Center (CCC). Wrote the court, “There exists a well-established system for the licensing of excerpts of copyrighted works. Copyright Clearance Center (“CCC”) is a not-for-profit corporation with headquarters in Danvers, Massachusetts. CCC licenses excerpts from copyrighted works for a fee, acting on behalf of publishers who choose to make their works available through CCC. These licenses are called “permissions.” All three Plaintiffs offer excerpt-specific permissions to photocopy or digitally reproduce portions of their works, which may be obtained directly from Plaintiffs or through CCC. Permissions are not, however, available for licensed copying of excerpts from all of Plaintiffs’ works.”

In other words, if you want permission, you can get it; you simply have to pay for it if it is available, and in some cases it is not. In fact, dealing with CCC is no easy matter. The Court added, “How much unpaid use should be allowed is the bailiwick of the fair use doctrine. To further the purpose of copyright, we must provide for some fair use taking of copyrighted material. This may be viewed as a transaction cost, incidental to the business of authorship. But if we set this transaction cost too high by allowing too much taking, we run the risk of eliminating the economic incentive for the creation of original works that is at the core of copyright and—by driving creators out of the market—killing the proverbial goose that laid the golden egg.” Or, there must be a balance between educational value on the one hand, and incentive to create on the other. Neither, in the court’s opinion, has an absolute right.

Although not a big deal, the Court also found that what GSU did was not transformative: “Defendants’ use of excerpts of Plaintiffs’ works is not transformative. The excerpts of Plaintiffs’ works posted on GSU’s electronic reserve system are verbatim copies of portions of the original books which have merely been converted into a digital format. Although a professor may arrange these excerpts into a particular order or combination for use in a college course, this does not imbue the excerpts themselves with any more than a de minimis amount of new meaning.” In order to remain in fair use, a work cannot be copied verbatim but must be used either sparingly (see below), or recast to create a new work. Thus, Weird Al Yankovic can get away with his music and make a sizable profit because his songs transform the original work. Parody has always been protected, so long as it is different enough from the original. The works in question had not been changed at all, just copied verbatim.

With respect to how much copying had been done, GSU often resorted to 10% of the original rule-of-thumb, or the so-called “bright line.” But the Appeals Court questioned this as well, arguing that it is not a set amount, but whether what has been copied is substantially the point of the work. Although it is in public domain, it could be argued that Portia’s “Mercy Speech,” which does not occur until the Fourth Act of The Merchant of Venice, is the heart of that play, though it comprises less than one half of one percent of the whole. A more recent example would be Joyce’s ending of Ulysses and Molly Bloom’s famous “yes” monologue. The point the court made was that simply looking at a piece arithmetically is not going to protect you under fair use if what you choose to use is the heart of that work. It’s a judgment call, but it’s a judgment call that must be made on each individual piece presented, not an arithmetical amount applied to everything possible.

The Court concluded, “[T]he District Court erred by separating two considerations from its analysis of the first and fourth fair use factors…. Because the District Court’s grant of injunctive relief to Plaintiffs was predicated on its finding of infringement, which was in turn based on the District Court’s legally flawed methodology in balancing the four fair use factors and erroneous application of factors two and three, we find that the District Court abused its discretion in granting the injunction and the related declaratory relief. Similarly, because the District Court’s designation of Defendants as the prevailing party and consequent award of fees and costs were predicated on its erroneous fair use analysis, we find that the District Court erred in designating Defendants as the prevailing party and awarding fees and costs to Defendant.”

JUDGE VINSON’S MORE CONCURRING BUT SOMEWHAT STRIDENT REMARKS

District Judge Vinson also weighed in concurring, but was even harsher on GSU, writing “after applying traditional common law principles to the use at issue here, this is a rather simple case. Checking the four statutory factors to ensure that they have been considered merely affirms the conclusion that what GSU is doing is not fair use.” He goes on to write, “[T]his case arises out of a university-wide practice to substitute “paper course packs” (the functional equivalent of textbooks) that contained licensed copyrighted works with “digital course packs” that contained unlicensed copyrighted works. This was done for the vast majority of courses offered at GSU and, as will be seen, it was done primarily to save money.” Ouch.

He closes with a strident conclusion and a bit of moralizing: “I would go further than does the majority and conclude that both the District Court’s methodology and its analysis were flawed. The Defendants’ use fails under any objective common law “big picture” adjudication of fair use and also fails on a work-by-work analysis under three of the four factors (while the remaining factor is either neutral or weighs against Defendants). It has been said that fair use is best and most precisely explained by the following paraphrase of the Golden Rule: “‘Take not from others to such an extent and in such a manner that you would be resentful if they so took from you.’” Ouch, again.

SO, WHERE DOES ALL THIS LEAVE US?

I am no lawyer, and while I played one on stage once upon a time, that still doesn’t really count. My take on this is less sanguine than some of my doubtless better informed colleagues, here, but not here, or even here. Some factors remain that are important to consider and feed my pessimism. While the publishers may not have won a grand slam, they did get back their money, and GSU will have to modify once again its approach to copyright and e-reserves. True, e-reserves remain fair use, but they remain in the bailiwick of the library that is making a good faith effort to abide by fair use. Judge Vinson’s concurring remarks should provide a horrifying backdrop of what could have been: GSU should pay for everything it copies, or words to that effect.

First, fair use is not a blanket protection for anyone who teaches. It is a tool by which professors and teachers may use certain portions of copyright text to aid the transmission of knowledge. Currently, it cannot be a substitute for buying the textbook, asking for permission, or paying a licensing fee id what is needed is a substantial portion of the whole of that work. Blackboard CANNOT become the Wild West (as a colleague puts it) of copyright infringement. Furthermore, just because a professor wants to use a copyrighted work again and again does not make it right. In fact, repetitive use of the same materials semester after semester can become a red flag.

But there is good news: the Copyright Classroom Guidelines (spontaneity, brevity, and cumulative effect) were pretty much dismissed by the Appeals Court as being the porch of copyright, not the house. The guidelines have always been that–guidelines, not law. On the other hand, neither publishers nor authors have exclusive copyright, or absolute copyright. There are exceptions. Consumers of copyrighted materials need to understand that the work or works they wish to use cost publishers more than a little to produce. Taking from them that right, or short-circuiting it, is unfair. While information may want to be free, only Google and social media are making any money off of free content. Certainly the authors are not, and neither are the publishers if they have been involved.

Second, DMCA (digital Millennium Copyright Act) take-down notices are almost as common in academe now as patches on tweed coats once were. And they can be expensive if one is found in violation. Just as you might surf the net for something useful to use in class, so do some publishers surf the net looking for copyright violators–and the have bots helping them find you. While it is very likely a given professor will not be taken to court, his or her university might be. It’s the “deep pockets” theory. If a professor knowingly violates copyright, he or she puts everyone at risk.

Third, copyright is hard to understand, it is muddy water, it is Janus-faced (one decision looks toward publishers, another toward consumers), and trying to figure it all out is very hard to do, even for copyright attorneys. That’s where we in the library can help. If the text you need follows the four factors, we’ll help you with it. If it does not, we’ll seek permission from the copyright holder. If we cannot get that and the text is a “must have” we’ll buy the permission from CCC. If that doesn’t work and we have no link to it in our purchased materials, it may be time to look for something else. Rare is the case where one text on a given topic is all there is.

Fourth, and this really doesn’t apply here, I’m sure, revise and update your syllabus, if not every semester, then certainly every year. I know this is hard to do–I have taught before. But it is good for many reasons, not the least of which is to account for any new information that has been discovered since the last time the course was taught.

Fifth, and last, I know there are universities that seek to challenge copyright by pushing the envelope. We are not one of them. I also know that many want copyright changes, and many are eager to chant the mantra, information wants to be free. All of that is well and good. But do bear in mind that Congress must take up the copyright cudgel because that’s its job. Congress is also the reason we are where we are today with respect to copyright, so be careful what you wish for. Finally, there is a school of thought that says if we all act like copyright is over, no one will get prosecuted. We’re not there yet. Copyright law still applies, and if we are preaching academic integrity to our students, we must also practice it ourselves.

Until all this gets sorted out, open access anyone?

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