Will the third time be the charm in the Georgia State University e-reserves case? With an April 26 deadline for reply briefs looming in the now 11-year-old copyright case, District Judge Orinda Evans will soon try once again to write an opinion that can survive judicial review, after two previous reversals on appeal.

The suit was first filed on April 15, 2008, by Cambridge University Press, Oxford University Press, and Sage Publications (supported by the Association of American Publishers and the Copyright Clearance Center). It alleges that GSU administrators infringed copyright by systematically encouraging faculty to offer students unlicensed digital copies of course readings (known as e-reserves) as a no-cost alternative to traditionally licensed coursepacks. The AAP has called the litigation a “test case” to “inform the application of fair use in the academic setting.” But after two verdicts against the publishers and two reversals on appeal, observers question how much a final verdict in the case will matter, as an evolving market continues to address the issue at the heart of the suit.

“The world has moved on in a lot of ways,” said Brandon Butler, director of information policy at the University of Virginia Library, who has followed the case closely since it was filed. “We’re now looking to university presses as partners in an open access world, which of course includes access by students. I think more and more libraries are also looking at e-book licenses that allow unlimited simultaneous users as an attractive way to support affordable education for our students—a model that would facilitate assigning a chapter here and there. We are also supporting open educational resources that in some cases can replace expensive textbooks and, perhaps, render e-reserves less important.”

Still, 11 years later, a thorny fair use case continues—and it is far from clear which side will prevail. In their March 22 remand brief, the publishers contend that the 11th Circuit Court of Appeals has now clearly instructed Evans, twice, to give determinative weight in her fair use analysis to factor four of the four-factor fair use test: the “severe threat” posed to the publishers’ market by GSU’s copying. The appeals court has told Evans to give only moderate weight to factor one—the educational purpose of the copies.

But in their remand brief, GSU attorneys argue that the appeals court calls for a “holistic” fair use analysis that eschews the mathematical weighting of the four factors and instead considers “the collective effect and interrelatedness” of all four factors against the purpose of copyright. And a finding against fair use, GSU lawyers insist, would “effectively eviscerate” the plain language of the Copyright Act, which explicitly mentions “multiple copies for classroom use” as an acceptable fair use defense.

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What is a judge supposed to do when faced with a compelling fair use purpose—education—and a compelling claim of market harm?
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Where to draw the fair use line in this case has turned out to be especially complex, Butler said. “This case is so hard, because it is just not amenable to easy analysis under any of the grand theories or patterns of fair use that have emerged over the last several decades,” he explained. “What is a judge supposed to do when faced with a compelling fair use purpose—education—and a compelling claim of market harm?”

As Evans prepares to rule for a third time, the most important question may be whether a final verdict can, as the AAP once hoped, inform the application of fair use in an academic setting.

“We could get really stark guidance if the court takes a drastic turn,” Butler said. “For example, if Evans, in her third decision, reads the 11th Circuit’s guidance to mean that there is just no room for fair use where the copyright holder offers a mechanism for paying license fees.” But that, he added, seems unlikely. “The most likely form of clarity or guidance I can see emerging from the case would be that libraries could look at the uses that are ultimately found to be fair, if any, and do some crude pattern matching.”

But even then, Evans’s final opinion would not be binding on any other court, Butler noted, and even the 11th Circuit can only bind the courts in its jurisdiction—those in Alabama, Florida, and Georgia. And in the absence of any kind of easily understood, broadly applicable formula for determining fair use—which the 11th Circuit has explicitly rejected in this case—educators might be able to infer where a fair use line should be drawn, but still not understand why it should be drawn there.

“It’s not a good situation," Butler said, "if you want the law to earn people’s respect, as well as their compliance.”