Jeffrey Galin
All,
The GA State case has been decided as of May 11th. The transcript is over 300 pages. I am in the process now of summarizing it. I'd like to write a piece for the inbox sometime this summer if possible Kim. I'll be posting a note to WPA this weekend. Some interesting things have come from this case. It is not fully settled yet. Out of 75 documents that plaintiffs asserted violated copyright, only five were found in violation. The tests that judge used have now created a bright line test of fair use for academic purposes for online reserves.
Another interesting test the judge used was to determine how much money was being made by license fees for the given work as opposed to the cost of the book and book sales. This metric has interesting implications. For both sides.
This case is a state case but is very high profile and is likely to lead to precedent. The most interesting/distressing conclusion reached on the case is that only one chapter and up to 10% of a work can count as fair use for online reserves purposes.
Also, the court found that the Copyright Policy of GA State “caused” the infringements that occurred.
The policy did not limit copying in those [5] 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).
Interestingly, the Court decided the one chapter limit and then accused the university of violating this rule. The Court stated:
“ Where a book contains ten or more chapters, the unpaid copying of up to but no
more than one chapter (or its equivalent) will be permissible under fair use factor three.”
I was a bit surprised that the court-devised metric was used for each of the 75 works in question as if it had always been the rule of law.
The court continues saying that “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).” This is a rather scary statement, although it would not hold up in court. The metric would be applied in court.
While the court found that the Defendants tried to comply and that applying fair use is “notoriously difficult,” the “Defendants' intent is not relevant to a determination whether infringements occurred.” Therefore, the court found in favor of the plaintiff in five instances.
One other thing of note is that the relief decisions have not been decided. Both parties have filed for court costs. I expect that GA State will be on the losing side of this even though only five violations were found. IF the Judge is really fair about it, I am expecting that both sides will absorb their own costs. After all, the plaintiffs were shooting for the moon. They seem to have reached the top of the San Francisco bridge. The court costs, however, are the big ticket item here. Otherwise, the injunction is rather moot since whatever materials had been posted are long removed.
The clear message is that universities will now have clear guidelines for allowable fair use along the lines of the CONTU and CONFU guidelines concerning non-creative works (which it did not address at all). No more than 10% or one chapter for books with 10 chapters or more.
I’ll be writing up a more coherent response soon, but it is important to note where we are at this point. We should hear the relief decisions within the next month or so.
Cheers,
jrg
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Jeffrey R. Galin