The case concerns the use at Georgia State University (GSU) of electronic course reserves and electronic course sites to make excerpts from academic books available online to students enrolled in particular courses. The named plaintiffs in the case are three academic publishers (Oxford University Press, Cambridge University Press, and Sage), who argued that the unlicensed posting of digital excerpts for student access almost always exceeded fair use and should require a license.
image © Jason PuckettOn Friday, October 17, 2014, the US Court of Appeals for the Eleventh Circuit issued its ruling in the Georgia State University (GSU) case concerning the use of excerpts of academic books for electronic course reserves. The Eleventh Circuit reversed and remanded the decision to the district court. In doing so, the court upheld the importance of the flexible application of fair use. Importantly, the Eleventh Circuit did not rule on whether each of the uses by GSU were fair uses or not, but instead found fault with the district court’s methodology, which used bright-line rules and an arithmetic approach (i.e., if three of the four factors favor fair use, then the use is fair). Assuming that litigation goes forward rather than the case being settled, the district court will need to revisit its fair use analysis, but could potentially again find that GSU’s uses were fair use for most of the works at issue.
For a more detailed analysis of the October 17 ruling, see “In Georgia State University E-Reserves Case, Eleventh Circuit Endorses Flexible Approach to Fair Use,” on the ARL Policy Notes blog.
In this 16-minute video, copyright lawyer Jonathan Band discusses the 2014 decision in the Authors Guild v. HathiTrust case and the implications for libraries.
image © UT AustinOn July 15, 2014, the US Court of Appeals for the Fifth Circuit announced its decision (PDF) in the case of Fisher v. University of Texas [UT] at Austin, a closely watched case challenging UT Austin’s consideration of race as a part of its admission policy. In a 2-1 decision, the Appeals Court found in favor of UT Austin. The majority wrote, “It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity.” The court continued, “This interest is compelled by the reality that university education is more the shaping of lives than the filling of heads with facts—the classic assertion of the humanities.”
Google BooksOn July 8, 2014, the Library Copyright Alliance (LCA)—the American Library Association (ALA), Association of Research Libraries (ARL), and Association of College and Research Libraries (ACRL)—filed an amici brief (PDF) in the US Court of Appeals for the Second Circuit in Authors Guild v. Google in favor of Google’s transformative use in creating Google Book Search (GBS). The Southern District of New York previously ruled in favor of Google, finding that GBS provided significant public benefits and constituted fair use.
image © Thomas HawkJonathan Band, policybandwidth and legal counsel to the Library Copyright Alliance (LCA), released on July 7, 2014, an analysis of the recent Authors Guild v. HathiTrust decision, “What Does the HathiTrust Decision Mean for Libraries?” (PDF). As Band notes, “The decision has implications for libraries that go far beyond the specific facts of the case. This paper offers some preliminary thoughts on what these implications may be.” The paper reviews several issues including mass digitization and storage, access to works, suggestions concerning other forms of access, and associational standing. Band concludes:
In July 2014, the district court issued its full memorandum and order in White v. West Publishing, explaining that three of four fair use factors weighed in favor of a finding of fair use while the remaining factor was neutral.
On June 10, 2014, the Court of Appeals for the Second Circuit affirmed the lower court decision in Authors Guild v. HathiTrust in favor of HathiTrust Digital Library.
On July 8, 2014, the Library Copyright Association filed an amicus brief for Authors Guild v. Google, Inc. in the US Court of Appeals for the Second Circuit.
image © Thomas HawkThe Library Copyright Alliance is extremely pleased with today’s decision by the US Court of Appeals for the Second Circuit in Authors Guild v. HathiTrust, finding in favor of fair use. The Library Copyright Alliance filed an amicus brief (PDF) in the case, supporting HathiTrust’s position and the lower court’s finding of fair use.
The HathiTrust is a partnership of major research institutions and libraries working to ensure that the cultural record is preserved and accessible long into the future. There are more than sixty partners in HathiTrust, and membership is open to institutions worldwide. The HathiTrust digital library is comprised of nearly 10 million scans that resulted from the Google Library Project and other digitization efforts by research libraries.
image © CoyauOn Friday, April 11, 2014, the Association of Research Libraries (ARL), along with the American Library Association, Association of College and Research Libraries, and other organizations, joined an amicus brief authored by the Electronic Frontier Foundation in Garcia v. Google. The brief urges the US Court of Appeals for the Ninth Circuit to reconsider its decision in this copyright case in which a 2-1 panel ruled in favor of Cindy Lee Garcia, one of the actors in the film Innocence of Muslims. Garcia claimed a copyright interest in her performance after being tricked into appearing in a five-second clip of the film and subsequently sought takedown of the film from YouTube, which is owned by Google.
In April 2014, the Association of Research Libraries signed on to the Garcia v. Google amicus brief. In the brief, the Electronic Frontier Foundation (EFF) urges a federal appeals court to reconsider its decision to order Google to take down a controversial video while a copyright lawsuit is pending as the decision sets a dangerous precedent that could have disastrous consequences for free speech.
April 11, 2014 EFF Press Release
image © Lauren SwiecickiIn a long-running legal dispute between Frederick E. Bouchat and the Baltimore Ravens along with the National Football League (NFL), a federal appeals court has ruled that the use of the former Ravens logo by the Ravens and the NFL was fair use. The case involved the incidental use of copyrighted logos in films about historical events—football games, in this instance.
Google BooksOn November 14, Judge Denny Chin of the Court of Appeals for the Second Circuit ruled that the digitization of millions of books from research library collections was a fair use and dismissed the Authors Guild case against Google and its Library Project, saying that the project “advances the progress of the arts and sciences, while maintaining respectful consideration of the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.” In his decision, Judge Chin cited a November 2012 amicus brief (PDF) submitted by the Library Copyright Alliance (comprised of the Association of Research Libraries, the American Library Association, and the Association of College and Research Libraries). The Authors Guild has stated that they disagree with the decision and plan to appeal.
image © Jason PuckettIn 2012, the North Georgia District Court ruled largely in favor of Georgia State University (GSU) in the ongoing copyright lawsuit initiated by Cambridge University Press, Oxford University Press, and SAGE Publishers. The decision was the first US federal court decision specifically addressing fair use and electronic reserves. Plaintiff publishers appealed on many points of the ruling.
Google BooksAfter eight years of litigation, the US District Court for the Southern District of New York today upheld the fair use doctrine when the court dismissed Authors Guild v. Google, a case that questioned the legality of Google’s searchable book database.
On October 31, 2013, ARL joined more than 40 associations in signing this amicus brief in support of the University of Texas in its appeal of the ruling in Fisher v. University of Texas. The case challenges the affirmative action admissions policy of the University of Texas.
image © Scott LengerOn August 30, ARL joined the American Council on Education (ACE) and 47 other organizations in submitting an amicus brief (PDF) to the US Supreme Court in Schuette v. Coalition to Defend Affirmative Action. In the brief, the amici urge the Supreme Court to overturn Michigan’s ban on considering race in college and university admissions.
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image © Scott LengerARL and 36 other members of the Washington Higher Education Secretariat placed an advertisement (PDF) in yesterday's New York Times declaring that diversity in higher education remains a national priority. Last week, the US Supreme Court issued a decision in Fisher v. University of Texas at Austin et al., a closely watched case challenging the University of Texas’s consideration of race as part of its admissions policy. The Supreme Court held that the Fifth Circuit had not applied the correct level of scrutiny to the policy and sent the case back to the Fifth Circuit for review. In its decision the Supreme Court maintained the legal principle that the educational benefits of a diverse student body are a compelling governmental interest.
image © Mark FischerIn a decision issued Monday, June 24, the US Supreme Court avoided a final ruling in a closely watched case challenging the University of Texas’s consideration of race as part of its admissions policy. Instead, the court held that the Fifth Circuit had not applied the correct level of scrutiny to the policy.
HathiTrustOn June 3, the Library Copyright Alliance (LCA) filed an amicus brief (PDF) in support of HathiTrust and its partners as they defend their district court victory on appeal in the Second Circuit. LCA consists of three major library associations—the American Library Association, ARL, and the Association of College and Research Libraries—that collectively represent over 300,000 information professionals and thousands of libraries of all kinds throughout the US and Canada.
image © Jason PuckettThe Library Copyright Alliance (LCA) filed a “friend of the court” brief (PDF) late yesterday in support of Georgia State University (GSU) in the appeal of Cambridge U. Press et al. v. Mark P. Becker et al. In its brief, LCA argues that GSU’s e-reserves policy is consistent with widespread and well-established best practices for fair use at academic and research libraries, and that these uses have no negative effects on scholarship. LCA was represented by Jonathan Band and attorneys from the Electronic Frontier Foundation. The case is on appeal with the US Court of Appeals for the 11th Circuit.
image © Chrystal Parsons
In "The Impact of the Supreme Court’s Decision in Kirtsaeng v. Wiley on Libraries" (PDF), Jonathan Band explains the recent copyright decision on the scope of the "first sale" doctrine, its context, and its likely consequences for libraries in the US. In short, the Supreme Court's opinion is a landmark victory that strengthens the legal foundation of library lending, and the Court's extensive reliance on the Library Copyright Alliance's amicus brief shows the importance of library engagement in policy debates. Continued vigilance will be necessary, Band explains, as rights holders disappointed with the Court's majority opinion could go to Congress for a change to the law.
image © Chrystal ParsonsToday the US Supreme Court announced its much-anticipated decision in Kirtsaeng v. Wiley, a lawsuit regarding the bedrock principle of the “first sale doctrine.” The 6-3 opinion is a total victory for libraries and our users. It vindicates the foundational principle of the first sale doctrine—if you bought it, you own it. All who believe in that principle, and the certainty it provides to libraries and many other parts of our culture and economy, should join us in applauding the Court for correcting the legal ambiguity that led to this case in the first place. It is especially gratifying that Justice Breyer’s majority opinion focused on the considerable harm that the Second Circuit’s opinion would have caused libraries.
The US Department of Justice (DOJ) decided not to participate in the appeal of the case Cambridge University Press v. Mark Becker as amicus curiae. The case concerns the use at Georgia State University (GSU) of electronic course reserves (e-reserves) and electronic course sites to make excerpts from academic books available online to students enrolled in particular courses. It was widely reported that the US Copyright Office requested that the DOJ file an amicus brief either on the side of the publishers or as a neutral party. On February 22, 2013, the DOJ sent this letter to the court stating that the US Attorney General had decided not to file an amicus brief in the case.
The US Department of Justice (DOJ) is evaluating whether to participate in the appeal of the case Cambridge University Press v. Mark Becker as amicus curiae. The case concerns the use at Georgia State University (GSU) of electronic course reserves (e-reserves) and electronic course sites to make excerpts from academic books available online to students enrolled in particular courses. It was widely reported that the US Copyright Office requested that the DOJ file an amicus brief either on the side of the publishers or as a neutral party. On January 25, 2013, the DOJ requested an extension of the time they have to file an amicus brief.
Two organizations in which ARL partners recently released informational resources about the first-sale doctrine and the Supreme Court case Kirtsaeng v. Wiley & Sons:
The Public View: Two-Minute “Person on the Street” Video by Owners’ Rights Initiative
First-Sale Fast Facts for Libraries: One-Page Summary by Library Copyright Alliance (PDF)
On Friday, May 11, 2012, Judge Orinda Evans released her 350-page opinion in the copyright infringement lawsuit against Georgia State University. This issue brief summarizes the key rulings in the case and discusses some possible consequences for libraries generally.
This memo summarizes the key rulings in the Georgia State University (GSU) lawsuit concerning the use of electronic course reserves and discusses some possible consequences for libraries generally.