© is the copyright symbol in a copyright notice
© is the copyright symbol in a copyright notice (Photo credit: Wikipedia)

Both the blogosphere and the water-coolers in library and publisher staffrooms have been abuzz this week with news of the ruling handed down last Friday in what has become popularly known as the “Georgia State University e-reserves case,” a ruling that one observer characterized as a “crushing defeat for the publishers.”

The plaintiffs in the suit were Cambridge University Press (CUP), Oxford University Press (OUP), and SAGE Publications (though an early filing in the case revealed that the financial backing for the action actually came from the Association of American Publishers and the Copyright Clearance Center). The suit alleged that GSU had gone well beyond fair use in its reserve practices and that the university library’s policies led directly to routine copyright infringement on a massive scale. The plaintiffs brought 99 specific claims of infringement; however, in the course of a 350-page ruling, Judge Orinda Evans found that only a handful of those cases constituted an infringement of copyright beyond fair use.

Of the 99 claims, 74 actually survived to the fair use analysis phase — in the 25 cases that failed, the plaintiffs were unable even to convince the judge that they held copyright in the works in question. Of the 74 claims that ended up being litigated, 69 were dismissed and five were upheld by the court. In her opinion, Judge Evans laid out the logic that underlay her findings in regard to fair use; a detailed account of her reasoning would take up too much space here, but can be found in several commentaries available online. Perhaps the most thorough and useful of these commentaries so far is the one provided by Brandon Butler, Director of Public Policy Initiatives for the Association of Research Libraries. In his view, from the library perspective “the substance of the opinion is not ideal, but it is far more generous than the publishers have sought, it establishes a very comfortable safe harbor for use of books on e-reserve, and libraries remain free to take more progressive steps.” There are also  nicely measured analyses from Kevin Smith, Scholarly Communications Officer at Duke University, and from James Grimmelmann of the New York University School of Law.

In-depth commentary from the publisher side has been slower in coming. In the aftermath of the ruling, the plaintiffs themselves were predictably grumpy. The Copyright Clearance Center’s response was terse, while the one from the American Association of Publishers was defiant. OUP and SAGE looked for the silver lining, expressing satisfaction that the ruling “recognized that Georgia State University’s flawed 2009 copyright policy resulted in infringement of our works” and that “the Court rejected the idea that public universities can shield themselves from allegations of copyright infringement.” CUP’s statement was perhaps the most negative in tone, criticizing the Court for holding that “a single quantitative figure can usefully be applied to cover all cases” and expressing disappointment at “the failure of the Court in this case to recognise that GSU’s conduct amounted to systematic and industrial-scale unauthorised reproduction of our authors’ works.”

To be sure, it’s not completely clear sailing from here for Georgia State. There is still the matter of the five claims in which the Court found for the plaintiffs — what kind of injunctive relief will the judge grant? (Given the lines of reasoning she followed in her opinion, I’m going to guess the remedies will be minimal, but who knows?)

At this point, it is indeed hard to read the ruling itself as anything less than a resounding defeat for the plaintiffs.

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Rick Anderson

Rick Anderson

Rick Anderson is Associate Dean for Collections and Scholarly Communication in the J. Willard Marriott Library at the University of Utah. He speaks and writes regularly on issues related to libraries, scholarly communication, and higher education, and has served as president of NASIG and of the Society for Scholarly Publishing.

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Discussion

12 Thoughts on "Final Score in the Georgia State Game: Library 94, Publishers 5"

Is it a defeat if nothing really changes? Fair use is preserved and publishers are no worse off than they were before the lawsuit. Fair use was neither expanded nor distorted. The judge provided us all with something of a bright line to use as a yardstick. I don’t see this as being anything to weep over.

Well, there are a couple of answers to that question. The first is: it’s a defeat when the judge says 95% of your suit is nonsense, which is pretty much the message that Judge Evans delivered to the plaintiffs in this case. The second is: I wouldn’t jump to the conclusion that nothing has changed. The “bright line” you refer to is actually the part of the ruling that libraries like least and publishers probably like most. The rest of the ruling is going to make libraries feel much freer to make the kinds of use we’ve always wanted to make of copyrighted materials, but which many of us have been afraid to make in the absence of a precedent like this. (Whether such use will result in real losses for publishers is a separate issue. Judge Evans clearly doesn’t believe it will. I think she’s probably right, but I wouldn’t blame a publisher for feeling differently.)

Rick, what does this mean specifically for your library? What will you do differently now that you have this ruling?

It’s too early to say — the ruling has only been out for a few days, and I’m actually scheduled to meet with our ILL folks to discuss it in a couple of weeks. But for one thing, I suspect that we’ll feel comfortable loosening the guidelines somewhat when it comes to scholarly nonfiction. The impact in individual libraries will depend mainly on how conservative each library’s policies were prior to the ruling.

OK then; so let’s assume that you do loosen your guidelines; so what impact would you then anticipate this “loosening” will have on your institution’s licensing for content? Also, I would love to know how much GSU spends on licensing compared to institutions of a similar size? Did their activity have an impact on their licensing costs — did their activity cause them to spend less on licenses? Would you anticipate the loosening of your guidelines will lower your licensing purchases? If yes, by how much? If no, why would libraries undertake this activity in the first place (and put themselves at risk) and if the answer is no; then why did publishers go to all this effort and expense to challenge GSU activity?

OK then; so let’s assume that you do loosen your guidelines; so what impact would you then anticipate this “loosening” will have on your institution’s licensing for content?

None. The questions at issue in the lawsuit don’t really apply to licensed digital content. When we license digital content it’s always for campuswide access, so the fair use questions don’t come up in that context — from a licensing and copyright perspective, linking to a licensed resource from a library’s e-reserve service is no different from linking to it from the library catalog. Where the GSU decision is likely to have an impact is on the scanning and uploading of printed materials, which are not typically purchased under license. The fair use considerations come into play when you’re creating copies of physical documents, not when you’re linking to a resource that you’ve licensed.

Also, I would love to know how much GSU spends on licensing compared to institutions of a similar size? Did their activity have an impact on their licensing costs — did their activity cause them to spend less on licenses?

That would be a good question to ask them, but I would guess the answer is no, for the reasons indicated above. (Unless, of course, they were copying and uploading content that was also available online under license. The GSU decision does say that the ready availability of a reasonably-priced license for the digital version of a work tends to undermine the fair use argument for scanning and uploading large excerpts of the print version — but remember that much of the material in question would not have been available in an online format, at any price.)

Would you anticipate the loosening of your guidelines will lower your licensing purchases? If yes, by how much? If no, why would libraries undertake this activity in the first place (and put themselves at risk) and if the answer is no; then why did publishers go to all this effort and expense to challenge GSU activity?

As I understand it, the lawsuit was about GSU making and distributing electronic copies (by means of an e-reserve system) of excerpts from printed books, which they wouldn’t have had to do if they had licensed online access to the materials in question. My understanding is that publishers went to the trouble of a lawsuit because they were concerned about what GSU was doing with printed materials.

So, if what you say is correct; why do you think everyone has gone to so much trouble over this (GSU in the first place and the publishers in the second place)? Aren’t print sales declining? Won’t this issue go away (and be resolved in the publishers’ favor — based on the ruling) once the books in question are digitized? As you say, the judge ruled that if a digital format is available for license then libraries should use that route (if the price is reasonable — whatever that means). So how is that a victory for libraries (even if the judge did throw out many of the publishers’ specific complaints)? I don’t think I entirely agree with you that throwing out most of the plaintiff’s case means a victory for the defendant. It seems to me that all this ruling will merely do is quicken the conversion to digital formats. At least that is what I would do if I were a book publisher. At that point, this ruling will then favor publishers; will it not?

Or, am I missing something? Is there a great demand for content in old textbooks? Do book publishers make a great deal of money from the copying of books? The judge didn’t think so. What will this ruling do to BYU’s expenditures on getting copyright clearance for copying segments of print textbooks? Do you see this ruling saving your organization money in any way? Would your library or your institution buy any fewer print textbooks; based on this ruling? Would you buy more electronic licenses or less; based on this ruling?

Sorry for all the questions Rick, I am just trying to understand why this issue seems to be so important to book publishers and libraries — my background is journals publishing and I am afraid I am missing an important point here.

I don’t mind the questions, Mark, but most of them would be more profitably directed at a publisher. I’ll do my best, though:

So, if what you say is correct; why do you think everyone has gone to so much trouble over this (GSU in the first place and the publishers in the second place)?

“Everyone” hasn’t gone to so much trouble. Two organizations (AAP and CCC) convinced three publishers (OUP, CUP, SAGE) to go to the trouble and provided the money necessary to do so. GSU didn’t choose to go to any trouble at all — it was coerced into involvement by the lawsuit that was filed against them.

Aren’t print sales declining? Won’t this issue go away (and be resolved in the publishers’ favor — based on the ruling) once the books in question are digitized?

If they get digitized, and if the copyright holders choose to make them easily available under license at “a reasonable price,” then that will certainly change the situation. But that’s a very big “if.” The books in question constitute an enormous backlog of titles, many of which may never be digitized because they have very little market value.

As you say, the judge ruled that if a digital format is available for license then libraries should use that route (if the price is reasonable — whatever that means). So how is that a victory for libraries (even if the judge did throw out many of the publishers’ specific complaints)?

Except by humorous implication in the whimsical title of my posting, I never characterized the judge’s ruling as a victory for anyone. However, it was undoubtedly a defeat for the plaintiffs.

I don’t think I entirely agree with you that throwing out most of the plaintiff’s case means a victory for the defendant.

Again: I never said it was a victory for anyone. For defendants in a lawsuit, “victory” simply means the plaintiff’s claims being found invalid.

It seems to me that all this ruling will merely do is quicken the conversion to digital formats. At least that is what I would do if I were a book publisher. At that point, this ruling will then favor publishers; will it not?

It will hasten the process of digital conversion only if copyright holders feel it’s in their interest to convert. Just because you make a book available digitally doesn’t mean there will be demand for it, and without market demand there’s not much incentive to make licensed access available for sale.

Or, am I missing something? Is there a great demand for content in old textbooks?

No. But this suit wasn’t about textbooks specifically — it was about printed books in general, the kinds that get drawn upon for class readings rather than purchased by students as class texts.

Do book publishers make a great deal of money from the copying of books?

They make no money at all from it; that’s why they filed suit.

What will this ruling do to BYU’s expenditures on getting copyright clearance for copying segments of print textbooks?

I don’t work for BYU, and I couldn’t say, but again — this lawsuit really wasn’t about textbooks.

Do you see this ruling saving your organization money in any way?

No. I see it possibly opening up our options somewhat in regard to digitizing portions of books for use in our e-reserve system. That’s what the lawsuit was about.

Would your library or your institution buy any fewer print textbooks; based on this ruling? Would you buy more electronic licenses or less; based on this ruling?

We don’t buy textbooks; I don’t see the ruling necessarily having much effect on licenses, because the books in question tend not to be available as licensed online resources.

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