On October 17, the 11th U.S. Circuit Court of Appeals reversed and remanded a key fair-use ruling in a long-running case over digital course readings on college campuses. But while on the surface the decision is a legal victory for the plaintiff publishers, two major library associations say the ruling is in fact a win for libraries, and for a popular practice known as “e-reserves.”
The case at the heart of the appeal decision, Cambridge University Press v. Patton, was filed in 2008 by three academic publishers (Oxford University Press, Cambridge University Press, and Sage Publications) against a handful of administrators at Georgia State University. The suit alleged that GSU administrators systematically encouraged faculty to offer unauthorized copies of course readings through GSU’s digital content systems as a no-cost alternative to traditionally licensed course-packs.
In 2012, district judge Orinda Evans denied publishers’ request for a sweeping injunction that would rein in e-reserve practices. But despite the reversal of Evans’s verdict on appeal, observers say the final outcome of the case is unlikely to change much.
“It is important to note that while the case has been reversed and remanded, the Eleventh Circuit did not rule against GSU,” observed officials on the Policy Notes blog of the Association of Research Libraries (ARL). “In fact, most of the publishers’ arguments were actually rejected.”
E-Reserves
The practice of e-reserves takes its name from the traditional library reserve model, where educators would make a limited number of licensed photocopies available to students. Today, however, as course readings are largely served online, the term “e-reserve” has sprawled to represent pretty much any kind of digital course content, from a few supplemental articles to 100% of assigned readings, whether managed by the library, placed by a professor in a course management system like Blackboard, or hosted on a personal or faculty website.
E-reserves have chafed publishers since their inception in the early 1990s. Because the practice relies on fair use (copies made by nonprofits for educational purposes), permission is often not sought for e-reserve readings, and thus no fees are paid, which has cut into publishers’ licensing revenue.
For most of the last two decades, a fragile peace was maintained through a set of best practices. For example, generally accepted e-reserve guidelines advise that excerpts should be small, hosted on password-protected servers, and available only to enrolled students, among other restrictions. But publishers complain that e-reserves are largely unmonitored, and that the practice is routinely abused.
After years of legal saber-rattling and tense conversations about e-reserves nationwide, publishers filed suit against GSU in 2008. In press reports, they called GSU an outlier. But librarians and university administrators saw the suit as less about GSU, and more as a broad attempt to chill the use of e-reserves and to coerce universities into securing blanket license agreements.
From the start, the case went badly for the publishers. For example, just as the suit was filed, GSU issued a tightened e-reserve policy to faculty. GSU attorneys then argued that the revised policy rendered moot any claims about past infringements. The court agreed. And overnight, the bulk of the publishers’ initial evidence—some 6,700 allegedly illegal copies—was tossed.
Ultimately, Evans was presented with 99 claims for trial, enough to establish a pattern of conduct. But of those 99 counts, only 48 actually got to a fair use analysis, owing to technicalities, including mundane record-keeping issues. In the final analysis, just five were deemed infringement. And, in a clear rebuke, Evans ordered the publishers to pay $3 million in legal fees to GSU.
In a statement on its website, the Association of American Publishers fumed that Evans’s initial verdict “ignored the forest for the trees” and dismissed a “lengthy pattern and practice of widespread infringement” in favor of “a microscopic examination of a narrow selection of individual works.” And in their appeal filing, the publishers’ cited a host of ostensible legal errors made by Evans.
In its 129-page opinion, the Eleventh Circuit did find enough errors to send the case back to Evans. But several lawyers told PW that the appeals court decision mostly affirmed Evans’s handling of the case, and rejected many of the publishers’ core claims. University of Maryland law professor and PW contributor James Grimmelmann called the reversal a “Pyrrhic victory” for the publishers. “They get the chance to go back to the District Court and argue fair use again,” he explained, “but they paid a high cost in time and money to get their do-over. And the results are likely to be similar for many of the books.”
There was one notable exception: Judge Roger Vinson, one of the three judges on the panel, issued a non-binding concurrence strongly backing the publishers. Uses which previously required permission do not “all of a sudden become fair use,” he wrote, “because the work is distributed via a hyperlink instead of a printing press.”
Win, or Loss?
In light of the ruling, Evans will now re-balance her fair-use analysis. In remanding the case, the appeals court took specific issue with how Evans “mechanistically” resolved fair use questions, noting that the four factors assessed to determine fair use are not equal, and that some factors must be weighted more than others depending on the nature of the work in question.
Glenn Pudelka, an attorney with Boston-based firm Edwards Wildman Palmer, praised that portion of the decision. “The mechanicalness of [Evans’s] ruling gave me heartburn,” he said. “You can’t just add up all the factors, and the appeals court did a nice job of saying fair use must consider the heart of the work.”
The court also rejected Evans’s attempt to impart a “bright line” rule of thumb for copying limits. In her decision, Evans had suggested that no more than 10% of a work, or one chapter of a book was reasonable. The appeals court, however, rejected the notion of any “guide” that could become a de facto safe harbor, holding that each work must be evaluated strictly on its own.
Still, Pudelka agreed that the appeals court’s guidance was not likely to change the overall outcome of Evans’s fair-use analyses. “Maybe instead of five infringements, you get 15,” he said, questioning whether the appeals court’s instructions would be enough to tilt the case against GSU.
In separate statements, officials at the American Library Association and the ARL said the opinion might require some institutions to reconsider their e-reserve policies, especially if they employ checklists to “mechanistically” determine fair use. The net effect of the ruling, however, bolstered the legality of e-reserves, librarians stressed.
“The court agreed that the nonprofit educational nature of the e-reserves service is inherently fair, and that teachers’ and students’ needs should be the real measure of any limits on fair use,” said ALA president Courtney Young, “not any rigid mathematical model.”
Not Over
In a joint statement, the publisher plaintiffs said they were still digesting the opinion, but looked forward to “a revised ruling from the lower court that we hope will draw this litigation to a close.” The litigation, however, may be far from over. And while settling would seem the most cost-efficient course for both parties at this point, GSU officials told PW they have no plans to do so.
“We don’t foresee settling,” said Andrea Anne Jones, a GSU spokeswoman. “We have always known that this case would set a precedent for universities across the country. We plan to continue to pursue this case for our students. Judge Evans has provided us with a thoughtful and detailed decision, and we expect she will do the same now that the case has been remanded back to her.”
