This will be the third time I’ve written in The Scholarly Kitchen about the 2008 lawsuit brought by several large academic publishers (with financial backing from the Copyright Clearance Center and the Association of American Publishers) against Georgia State University over its practice of routinely digitizing copyrighted print materials for use in its online reserve system. In my first posting on the topic (following a ruling in GSU’s favor in May 2012), I proclaimed that the “final score” in this game was “Library 94; Publishers 5,” referring to the 99 specific claims of infringement brought by the publishers—in her ruling, Judge Orinda Evans of the district court for the Northern District of Georgia found that 94 of the claims were without merit. (In 25 of those cases, the plaintiffs had failed even to demonstrate convincingly that they held the copyright in the works in question.) However, because it wasn’t clear what the penalties would be for the five infractions found by Judge Evans, I suggested that “it’s not completely clear sailing” for GSU.
Several months later the same judge denied the plaintiffs’ requests for injunctive and declaratory relief on those five infractions, and ordered the plaintiffs to pay GSU’s attorneys’ fees. At that point I changed my mind on the issue of “clear sailing,” writing that “the trouncing is complete.”
The plaintiffs appealed Judge Evans’ ruling, of course, and guess what? Now I get to reverse myself yet again, this time on my previous use of the words “trouncing” and “complete.” As it turns out, things have now gotten much more complicated than that.
In mid-October the 11th Circuit Court of Appeal issued its opinion on the District Court’s ruling, vacating Judge Evans’ order that the plaintiffs pay GSU’s attorney fees, and sending the case back to the District Court for reconsideration.
On the surface, this looks like a setback for those who have been cheering for the defendants in this case. And to be sure, it is definitely a setback for GSU—though mainly because they will now probably have to find the money to pay what are surely millions of dollars in attorneys’ fees.
But does the ruling constitute a setback for those who favor more liberal interpretations of fair use? The consensus among commentators seems to be “probably not.” According to analysts including Kevin Smith, Nancy Sims, and Joseph Storch, the Circuit Court’s decision to send the case back to the District Court for a rethink is more likely to result in a happy copyright outcome than upholding Judge Evans’ decision would have. The phrase “pyrrhic victory” has popped up many times recently in the library and scholarly-communication blogosphere.
How so? Most commentators seem to agree on several key points, including:
- The appeals court rejected plaintiffs’ call for rulings based on the large number of items involved in GSU’s practice rather than on a case-by-case analysis of each use. This is significant because treating each of the contested uses as an individual case makes it easier to find that each of them was fair.
- The appeals court found that where copying is done for nonprofit educational purposes, the nature of that use does, in fact, tend to favor a fair use finding under the first factor in the fourfold test for fair use. This has to have been deeply disappointing to the plaintiffs–especially in light of the court’s finding that the specific kind of digitization undertaken by GSU (as distinct from what was done by HathiTrust) did not constitute “transformative” reuse.
- Contrary to plaintiffs’ desires, the appeals court characterized the Classroom Copying Guidelines as a minimum safe-harbor standard, not as a limiting standard.
- Judge Evans had proposed a simple rule for deciding what would fit the substantiality test: copying up to 10% of the book’s content, or a single chapter, would be okay. Much to almost everyone’s relief (libraries as well as publishers), the appeals court rejected that idea as too simplistic.
A couple of things struck me in these commentaries, however.
The Siren Song of Simplicity
Storch, an attorney in the State University of New York’s Office of General Counsel, expressed regret that the appellate court “(cast) aside bright line rules” for academic fair use, making this (rather remarkable, I thought) observation:
The. . . case had opened up the possibility of teaching faculty how to properly make use of material using plain terms and easy-to-understand concepts, while the appeals court opinion returns us to the days of case-by-case holistic analysis and detailed exceptions, loopholes, and caveats.
While simplicity is a lovely thing when you can get it, it’s important not to get carried away by its charms. Simple and bright-line tests are as likely to limit fair use as to enhance it. Furthermore, I wince a little bit at what Storch’s lament seems to imply about his view of our faculty’s intellectual capacity (or willingness to do hard work). “We cannot expect our history and math faculty to do justice to the fair use analysis each time,” he says (we can’t?), and he predicts that faculty will instead simply divide themselves into two camps: “One group will… use whatever content they wish in whatever form they desire,” while the other, “out of an abundance of caution, will self-censor, and fail to make fair use of content for fear that they might step over a line they cannot possibly identify.”
This seems to me a bit much. Without bright-line criteria there will, of course, be some abuse (as there always has been, and always will be) and there will also be some self-censorship, but my own experience with faculty suggests that most are fully capable of understanding and applying the traditional fair use tests, and are willing to do so in a conscientious way when making use of copyrighted material in their work.
The Primary Importance of Goose Feed
I also found Nancy Sims’ commentary quite useful, but was struck by this passage:
The idea that creator remuneration is secondary to the actual purpose of copyright law is often left out of a lot of related public discourse. Most artists (and most lawyers I’ve met who represent artists or corporate creators) would put creator remuneration at the center of copyright. But this opinion (quoting from many, many other opinions) affirms again that “[p]romoting the creation and dissemination of ideas has been the goal” since the Statute of Anne, and that this is because the creation and dissemination of ideas is a public good.
It seems to me worth noting that the decision does not say that “the creation and dissemination of ideas is a public good”—it says that the financial incentives provided for by copyright law are intended “to stimulate artistic creativity for the general public good.” The difference between those two statements is significant, I think, not least because the economic concept of “a public good” is a very different thing from the colloquial concept of “the general public good.” Furthermore, in the page just prior to the one on which this quote appears, the decision approvingly quotes the U.S. Supreme Court as follows: “the economic philosophy behind the clause empowering Congress to grant copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors.”
Sims observes, correctly, that “the idea that creator remuneration is secondary to the actual purpose of copyright law is often left out of a lot of related public discourse.” Obviously, this is partly because a lot of that public discourse is delivered by people who are significantly concerned with creator remuneration. But I think it’s also worth noting that the appellate court quotes Aiken (422 U.S. at 156, 95 S. Ct. at 2044) to the effect that “the immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” Notice the much more nuanced casting here of the balance between creator remuneration and public good: remuneration is not “secondary” in the sense of “less important”; rather, it’s portrayed as a necessary condition for the achievement of the public good contemplated. In other words, the law was put in place with the express understanding that by imposing some restriction on public access and reuse (and thereby making the prospect of remuneration more likely), the public would ultimately benefit more than if there were no restriction—and that public benefit is the ultimate purpose of the copyright law. In the appellate court’s ruling, Judge Toflat puts it this way: if fair use allowances are too liberal, “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.” The ongoing supply of golden eggs is obviously the point of the law—but it seems to me that this makes feeding the goose a primary concern, not a secondary one.
But getting back to fair use and the GSU case. Speaking for myself alone, I will say this: my stance has always been that we in libraries should observe copyright law strictly, and also defend our fair use rights aggressively. I don’t always agree with my colleagues who want constantly to push the boundaries of fair use, but I also don’t believe in playing it as safe as possible—I think we need to do the necessary work of thoroughly understanding where the edge is, and then we need to go as close to it as needed (without crossing it) in order to do our work. We also need, I think, to help our faculty and students understand where that edge is so that they can do the same.
It will be very interesting to see what Judge Evans’ next ruling looks like.