UPDATE (May 13, 2012): Analysis and Commentary about the Court Ruling by:
My bottom line on the case is that it’s mostly a win for Georgia State and mostly a loss for the publishers. The big winner is CCC. It gains leverage against universities for coursepack and e-reserve copying with a bright-line rule, and it gains leverage against publishers who will be under much more pressure to participate in its full panoply of licenses.
In general I expect librarians to be happy about the outcome of this case. It suggests that suing libraries is an unprofitable adventure, when 95% of the challenged uses were upheld. But there will also be a good deal of hand-wringing about the uncertainties that the Judge has left us with, the places where we need information we cannot reasonably obtain, and the mechanical application of a strict percentage. We will spend considerable time, I think, debating whether and how to implement Judge Evans’ rules into our own copyright policies. In the meanwhile, of course, the ruling is nearly certain to be appealed.
Full Text of Court Opinion
May 11, 2012
Judge Orinda Evans,
U.S. District Court, Northern District of Georgia
Cambridge University Press. Press; Oxford University Press; Sage Publications
Georgia St. University
From the 350 Page Document
Did Georgia State’s 2009 Copyright Policy Cause Infringement of Plaintiffs’ Copyrights?
Of the 99 alleged infringements that Plaintiffs maintained at the start of trial, only 75 were submitted for post-trial findings of fact and conclusions of law. This Order concludes that the unlicensed use of five excerpts (of four different books) infringed
Plaintiffs’ copyrights. The question now is whether Georgia State’s 2009 Copyright Policy caused those infringements. The Court finds that it did, in that the policy did not limit copying in those instances to decidedly small excerpts as required by this Order. Nor
did it proscribe the use of multiple chapters from the same book.
Also, the fair use policy did not provide sufficient guidance in determining the “actual or potential effect on the market or the value of the copyrighted work,” a task which would likely be futile for prospective determinations (in advance of litigation). The only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available).
The Court does believe that Defendants, in adopting the 2009 policy, tried to comply with the Copyright Act. The truth is that fair use principles are notoriously difficult to apply. Nonetheless, in the final analysis Defendants’ intent is not relevant to a
determination whether infringements occurred. Accordingly, Plaintiffs are entitled to prevail on the following [five] infringement claims . . . With respect to the remaining 94 infringement claims, Defendants are entitled to prevail.
Many thanks to Dave Hansen for sharing the document with us.
This lawsuit brought by several publishers against Georgia State University involves the use of copyrighted materials in e-reserves in higher education, but the impact of the case and its potential results may be far more reaching