Last Updated on November 25, 2014, 10:41 pm ET
In recent testimony (both written and oral) at the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet Hearing on Copyright Issues in Education and for the Visually Impaired, Allan Adler, representing the Association of American Publishers, asserted that in the Georgia State e-reserves case, the Eleventh Circuit erred in rejecting applicability of the media neutrality doctrine, the principle that copyright law should apply in a similar manner to similar works in different media. Invoking the media neutrality doctrine, Mr. Adler essentially argued that the “coursepack” cases – Basic Books Inc. v. Kinko’s Graphics Corp. and Princeton University Press v. Michigan Document Services – should control and that the use of copyrighted material in Georgia State’s e-reserves was not fair use. This argument ignores several important points regarding the facts of the case, including the fact that the coursepack cases were distinguishable on grounds that had nothing to do with media neutrality.
First, the coursepack cases do not apply because material placed in electronic reserves are not the equivalent of material that is collected and bound together in a coursepack. A coursepack is like an anthology sold to all the students in a course, which the students can place on their bookshelves and continue to use long after the end of the course. By contrast, in an e-reserves system, the university provides students with temporary access privileges that terminate at the end of the semester. A student can continue to access the materials that were in the course e-reserves only if the student became the volitional actor by printing out the materials while she still had access to them. That copying by a student for her personal use unquestionably is a fair use. The media neutrality doctrine applies only in cases where the cases are truly analogous.
Additionally, the coursepack cases are not controlling because the circumstances of those cases were very different than the facts in Georgia State. In particular, the coursepack cases clearly involved commercial, for-profit copy shops and the coursepacks were sold to students for a profit. By contrast, the e-reserves at issue were run by Georgia State University, a non-profit educational institution and the use was also a non-profit, educational use. This distinction is significant under the first fair use factor which looks at “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” As the Eleventh Circuit pointed out in rejecting the coursepack cases that in these cases:
. . . the nontransformative, educational use in question was performed by a for-profit copyshop, and was therefore commercial . . . [Courts have] refused to allow the defendants, who were engaged in commercial operations, to stand in the shoes of students and professors in claiming that their making of multiple copies of scholarly works was for nonprofit educational purposes.
However, in both of the coursepack cases, the courts expressly declined to conclude that the copying would fall outside the boundaries of fair use if conducted by professors, students, or academic institutions. See Princeton University Press, 99 F.3d at 1389 (“As to the proposition that it would be fair use for the students or professors to make their own copies, the issue is by no means free from doubt. We need not decide this question, however, for the fact is that the copying complained of here was performed on a profit-making basis by a commercial enterprise.”); Basic Books, 758 F. Supp. at 1536 n.13 (“Expressly, the decision of this court does not consider copying performed by students, libraries, nor on-campus copyshops, whether conducted for-profit or not.”).
Reliance on the coursepack cases is therefore misguided as they involved off-campus, for-profit copy shops rather than non-profit educational institutions. The courts in these coursepack cases explicitly note that the holdings of these cases do not reach the issue of copying by students, professors, libraries, or the academic institutions. In Georgia State, the e-reserves system was clearly run by the university. The coursepack cases are therefore distinguishable based on the analysis done under the first fair use factor.
Additionally, the coursepack cases are clearly not binding precedent on the Eleventh Circuit. These cases were decided in different jurisdictions – in a district court in New York and by the Sixth Circuit – and therefore not controlling. While the decisions in these cases may have had persuasive value, even if they had analogous fact patterns such opinions would not bind the Eleventh Circuit.
Finally, the decisions are more than 15 years old. Fair use jurisprudence is always evolving. There is no way to know if courts in the Second and Sixth Circuits would reach the same conclusion today that they reached in the last millennium.
While the media neutrality doctrine is an important copyright principle, it – and the coursepack cases – simply do not apply in the Georgia State decision. The Eleventh Circuit correctly rejected this holdings in this line of cases when considering the fair use of Georgia State’s e-reserves system.