n May 11, 2012, the U.S. District Court for the Northern District of Georgia issued its long-awaited opinion in Cambridge University Press v. Becker, No. 1:08-CV-1425-ODE (N.D. Ga. May 11, 2012) which examined one of the new ways professors and students teach and learn in the digital age. Although the court found the University’s copyright policy contributed to copyright infringement on only five of the many claims, the district court applied an unconventional fair use analysis and, among other surprises, extensively examined the availability for licensing of digital excerpts and this may have publishers taking a second look at licensing models for digital versions of works offered to institutions. Universities in turn need to be wary of formulaic fair use guidelines as courts will not generally look at fair use in terms of a fixed percentage of a work, particularly as new licensing models do emerge.
Georgia State University allowed its professors to post excerpts from copyrighted texts to an “electronic reserves” system, where students could freely access and download the excerpts. The university did not obtain publishers’ permission or pay licensing fees before posting the excerpts. In 2008, several publishers sued the University, alleging the electronic reserves system was an unlawful substitute to lawfully purchasing textbooks, and a “massive” instrument for copyright infringement. In 2009, while defending the lawsuit on fair use grounds, the University amended its copyright policy to require its professors to complete a “Fair Use Checklist” before excerpts could be posted on the electronic reserve system. The district court’s 350-page opinion largely focused on the University’s fair use defense in light of its amended policy and the non-profit educational use of the excerpts.
The doctrine of fair use provides that certain unauthorized uses of copyrighted material are sometimes permissible. Courts generally consider four factors when making fair use determinations: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work. 17 U.S.C. § 107.
One year after conducting a fifteen-day bench trial, U.S. District Judge Orinda D. Evans issued a lengthy opinion applying the fair use factors in an unconventional and controversial manner. First, the district court found that the use of the excerpts by a non-profit educational institution for teaching and scholarship purposes weighed heavily in the University’s favor. Judge Evans noted this use is the quintessential kind of fair use and is expressly mentioned in the preamble to the doctrine of fair use.
Second, the district court noted that the second fair use factor involves a sliding scale approach — informational works on one end that deserve less copyright protection, and purely creative works on the
other needing more protection. While acknowledging that this approach can be useful, Judge Evans instead again looked to the doctrine of fair use preamble and held that because “criticism and comment” were listed as works needing more exposure, the informational and educational “nature” of the excerpts favored fair use.
Third, the court established its own criteria under the third factor to determine the “amount and substantiality” of a book that can be fairly copied. Judge Evans held that if the book contained fewer than ten chapters, it is permissible to copy no more than ten percent of the pages. But if the book contained ten or more chapters, it is permissible to copy no more than one chapter. Applying this unprecedented and self-created test, the district court determined that the third fair use factor could favor either side depending on the amount that was copied from the individual books at issue.
Finally, in determining the effect on the market, the district court noted that courts often look to whether a license to use the copyrighted material is readily available. However, Judge Evans found that only the digital excerpt license market was relevant (rather than the course packet license market) because the University chose to electronically distribute the excerpts. The district court held the fourth fair use factor weighed against fair use if digital excerpt licenses were conveniently available for each excerpt at reasonable prices.
Analyzing the fair use factors, Judge Evans held that forty-three of the publishers’ copyright infringement claims were protected by the doctrine of fair use, and only five succeeded because the copying was not fair use. The district court concluded that the University’s fair use policy caused these five infringements because it did not limit copying to small excerpts, proscribe the use of multiple chapters from the same book, or provide sufficient guidance to the professors to determine the actual or potential effect on the market for the copyrighted work.