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.
The suit was filed in April 2008. The named defendants are officers and employees of Georgia State University (GSU). GSU had a fairly liberal policy on the use of e-reserves and course sites at the time the suit was first filed, but it substantially changed its policy in early 2009, adopting a fair use checklist as a way to guide professors’ decisions about what material to share with students under fair use. The checklist did not include specific percentages or page limits. The publishers initially brought three claims of infringement against GSU, but two of these claims were dismissed early on. Ultimately, the case turned on whether the 2009 GSU copyright policy had caused infringement of the plaintiff publishers’ copyrights. To determine the effect of the GSU policy, the judge asked the parties to assemble a list of the excerpts of plaintiffs’ works which had been posted on electronic reserves or course sites during two semesters following adoption of the new policy. The parties put together an initial list of 99 excerpts, but the publishers “voluntarily and unilaterally” submitted only 75 of the excerpts for the judge’s evaluation.
In May 2012, the district court issued its opinion, finding that the vast majority—all but five of the cases—constituted fair use. Jude Evans dismissed several of the alleged cases of infringement as de minimis. As to the rest of the alleged infringements, Judge Evans applied the four factor analysis under fair use. She found that the first factor (purpose and character of the use) strongly favored GSU due to the non-profit educational nature of the use. She found that the second factor (nature of the work) favored GSU because the works were non-fiction. On the third factor (amount and substantiality of the portion used), Judge Evans established a rule that this factor favors the user when no more than ten percent of a work or one chapter for books with more than ten chapters were used. With respect to the fourth factor (effect on the potential market), Judge Evans ruled that this factor favored the publishers where there was a reasonably priced, readily available license for the excerpts. Evans then used an arithmetic approach, essentially weighing each factor equally and concluding that if three of the factors favored the user, then the use was fair.
The publishers appealed the decision and on October 17, 2014, the Eleventh Circuit released its opinion, reversing and remanding the decision to the lower court. In doing so, the Eleventh Circuit upheld the importance of the flexible appication of fair use, finding that fair use must be determined on a case-by-case (or work-by-work) basis. The court found fault with the district court's methodology which used bright line rules and the arithmetic approach. The Eleventh Circuit rejected the ten-percent-or-one-chapter formulation and determined that fair use decisions must be conducted on a case-by-case basis. It also rejected the Classroom Copying Guidelines as a basis for fair use. It agreed that the first fair use factor favors fair use and that previous coursepack cases were not binding precedent in the case. However, in reversing and remanding, the Eleventh Circuit did not rule against GSU. Instead, the district court will reconsider each alleged infringement under the Eleventh Circuit's methodology.
FAQs: How Might the GSU Decision Affect Librarians' Use of the Code? (May 30, '12) - need new link