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Appeals court reverses GSU e-reserve fair use ruling

On Friday, Oct. 17, 2014 the U.S. Court of Appeals for the Eleventh Circuit in Atlanta reversed an earlier District Court’s ruling in Cambridge University Press et al v. Patton et al, that digital excerpts of books provided to students at Georgia State University (GSU) were protected by fair use.

In its reversal, the Eleventh Circuit panel ruled that the District Court erred in ruling that GSU’s use of portions of 43 copyrighted works was shielded by fair use. It also vacated orders awarding costs and attorneys’ fees to GSU and remanded the case back to the District Court.

“We are particularly gratified by the Eleventh Circuit’s decision to vacate the award against the publishers of millions in costs and fees in this case, which was shocking in its impact and which would certainly have had a chilling effect on future efforts to protect educational and scholarly works from unauthorized use,” said Steve Gillen, the TAA Board Member who coordinated preparation of an amicus brief filed by TAA in the appeal.

Oxford University Press issued a statement on the Eleventh Circuit’s ruling Friday, saying: “We welcome today’s decision as it will help to protect the intellectual property rights of authors and publishers who produce high-quality educational materials on which colleges and universities depend.” Read the full statement

The Association of American Publishers also issued a statement on the ruling, saying: “AAP believes that today’s decision will help to protect the intellectual property rights of authors and publishers who are providing students with high-quality educational materials.” Read the full statement

Cambridge University Press, Oxford University Press, Inc., and Sage Publications, Inc.filed suit in 2008 against several GSU officials, claiming the university had encouraged professors to upload thousands of copyrighted works to the school’s electronic reserve system, leading to widespread infringement.

In May 2012 the District Court ruled that only five infringements had resulted from the university’s policies. The lower court held that in 26 instances the publishers hadn’t established a prima facie infringement case and that in 43 instances the digital copies were protected by fair use.

After plaintiffs appealed in November of 2013, the Text and Academic Authors Association and The Authors Guild filed an Amicus Curiae brief supporting the position of the Plaintiffs in arguing that the U.S. District Court for the Northern District of Georgia erred in holding that the fair use defense allows GSU instructors to copy and distribute to students via online course reading systems substantial, nontransformative excerpts from Appellants’ books without a license.

The Amici argued that such a ruling threatens to supplant Appellants’ and amici’s core markets and unfairly devalues educational works. As a consequence, the court’s ruling threatens to undermine the goals behind copyright law – to promote the creation and dissemination of important works.

In Friday’s ruling, the Court of Appeals found that a Georgia district court erred in giving each of the four factors used in fair use analysis equal weight: 1) The purpose and character of use; 2) The nature of the copyrighted work; 3) The amount and substantiality of the portion used; and 4) The effect of the use upon the potential market.

The panel struck down the judge’s application of a set formula to the third factor, in which she declared fair use to extend to up to 10 percent, or one chapter, of a given work. She has also been instructed to weigh the fourth factor, market harm, more heavily.

The case is Cambridge University Press et al. v. J.L. Albert, case numbers 12-14676 and 12-15147, in the U.S. Courts of Appeals for the Eleventh Circuit.

Read the full 11th Circuit decision

Read the full Amicus Curiae brief

Nancy Sims, copyright program librarian at the University of Minnesota Libraries, will lead a discussion of the appeals court’s decision on “This Week,” Inside Higher Ed’s free weekly news podcast, on Friday, October 24. Click here to sign up to receive the podcast by email.