Last Updated on April 12, 2011, 3:17 pm ET
With a May 16 trial date now set for the Georgia State University (GSU) e-reserves case, it’s worth taking a fresh look at where things stand and what’s still at stake. Bottom line, the publishers still have a slog ahead of them, and they have probably already lost the most important legal argument in the case.
Just to recap, a group of publishers brought suit in 2008 against officials at GSU alleging that the GSU electronic reserves and course management programs involved copyright infringement. Late last year the library community discovered, via a footnote in the court’s opinion, a third party to the suit: the Copyright Clearance Center is paying for 50% of the litigation. ARL Director Charles Lowry expressed our disappointment that CCC, which markets itself as a partner to users as well as rightsholders, had decided to fund an attack on libraries. According to Publishers Weekly, a CCC spokesperson defended the suit as an effort to ‘clarify fair use,’ and as far as we know CCC continues its financial support of the publishers.
I wrote a detailed breakdown of the last major decision back in October, focusing on how the court had ruled on the publishers’ main claims, dismissing two out of three and leaving a narrow window for the third. It seemed at the time that the court had so narrowed the issues that the parties might come to a settlement; that outcome looks less likely now. So what issue remains for the court? And what will the court’s ultimate decision mean for the many libraries that operate electronic reserves programs?
The remaining issue
As I wrote in October, the court dramatically narrowed the issues and the inquiry in dismissing two of the three claims against GSU. The court found that GSU’s e-reserves program neither directly nor vicariously infringed copyright. The only remaining issue is whether GSU induces others to infringe by making e-reserves available and (somehow) encouraging its users to infringe copyright.
To put it another way, is the GSU e-reserves system more like a VCR, which has legitimate uses and is marketed and sold for those uses, or is it more like the peer-to-peer service Grokster, which the Supreme Court found was promoted in a way that encouraged infringing uses? Is the library enabling good faith fair uses of library materials, or is it encouraging professors and students to infringe?
The court has already partially answered this question by approving of GSU’s e-reserves policy. Based on expert testimony from Kenny Crews of Columbia University, the court concluded that, far from encouraging infringement, GSU’s policy was likely to prevent it.
So if making the e-reserves technology available to faculty, staff, and students is not infringement, and GSU’s written policies do not affirmatively encourage infringement, the only remaining issue is whether in practice, and in spite of its own written policy, GSU is encouraging infringement on its e-reserves system.
The court has tightly constrained how this issue will be determined at trial in May: based on a list of works used in recent semesters (along with the amount used and other information), the publishers will have to show, one-by-one, that so many of the uses are infringing that the program in its implementation is an inducement. GSU will get to respond by showing that each of the uses is in fact a fair use.
What’s at stake for research libraries?
The stakes for libraries at this stage actually seem to be fairly low. The court has already said that, in theory, there are ways to use e-reserves programs that are within fair use. The court has also said that GSU’s policy goes above and beyond what would be required to avoid charges of inducement. GSU’s peers should take a great deal of comfort from the way things are going so far.
Evaluating individual choices made by professors using the system seems likely to be a pretty mind-numbing exercise in applying the famed four factors. What was the purpose of Professor Smith’s use? Did he take an appropriate amount for that use? Is his use “transformative”? This kind of fair use trench warfare doesn’t seem likely to yield any sweeping legal precedents that libraries will have to incorporate into their own practice. Instead, the court’s blessing of the GSU policy (together with its refusal to find direct or vicarious liability) has probably given libraries a significant victory in the main legal dispute: libraries can continue to make materials available on reserve in the digital age.