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What does the GSU decision mean for the #librarianscode?

Last Updated on May 30, 2012, 1:50 pm ET

We’ve just added the following set of questions and answers to our FAQ for librarians, which is part of the rich package of resource pages that we’re maintaining to support users of the Code. As you’ll see, the impact of Judge Evans’ decision in the Georgia State University course reserves case on libraries following the Code should be fairly limited. The decision speaks directly to just one application of one principle out of the eight. In the narrow space where the decision and the Code overlap, they are arguably consonant in practice, though it seems Judge Evans is out of step with the library community on the theoretical question of “transformativeness.”

We hope this resource will help academic and research libraries as they determine whether and how the Georgia State course reserves decision should effect their own daily practice.

In a nutshell, what is the Georgia State decision about and how might it affect how librarians use the Code of Best Practices in Fair Use for Academic and Research Libraries?

The recent decision in Cambridge U. Press v. Becker addresses the scope of fair use when professors post excerpts from scholarly books to electronic reserves and course site platforms. The decision does not affect most of the Code, but it may have some impact on how libraries choose to apply Principle One to scholarly books. A short summary of the opinion, prepared by EDUCAUSE, is available here (3 page PDF). An extended briefing on the opinion from the Association of Research Libraries is here (8-page PDF).

How binding on libraries is the Georgia State decision? Is this the new “rule” for fair use and course reserves?

The decision does not legally bind other courts or libraries, and it does not address a wide variety of important use cases, so libraries will still need to look to the norms of their community for guidance when determining the scope of their fair use rights. Although Judge Evans’ opinion is thoughtful and meticulous, and certainly provides a helpful data point for libraries working through these issues, it does not legally bind any other library, and it may not even be the last word in this particular lawsuit. Either party may appeal, and other courts are free to diverge from what Judge Evans decided. Unlike a Supreme Court decision, the wider impact of a district court decision depends mostly on how persuasive it is to other courts and to practitioners. Libraries should take some comfort in the broad safe harbor that Judge Evans describes for using scholarly books, but they should not see the decision as settling this family of issues once and for all. Even if it were the final word on the topics that it does address, the decision does not speak directly to the use of material beyond scholarly books, and its framework is particularly inapposite to uses of non-textual materials (such as video and audio). Judge Evans’ use of chapters and percentages, and her inquiry into educational licensing markets, will be little help for libraries interested in making films or songs available online to students enrolled in relevant courses, for example.

How likely is an appeal?

It is difficult to speculate about this. The judge has not decided on what she will order GSU to do in light of her decision, instead asking the publishers to propose an order by May 31, and then giving GSU an additional 15 days to respond. After that, the judge will order her remedy, which may impact the publishers’ decision whether to appeal. It’s fairly certain that GSU will not appeal, as their policy was largely vindicated by the decision.

How does Judge Evans’ decision differ from the Code in principle?

The library community’s preferred approach to fair use eschewed bright lines of the kind that Judge Evans uses in her decision. Librarians recognized that fair use determinations are context sensitive, and avoided the temptation to use quantitative rather than qualitative limitations to describe the boundaries of fair use. The judge’s approach is likely attributable to the nature of the GSU policy, which was based on a checklist. Judge Evans framed her analysis in terms of formulating a workable checklist, which is a solution that some institutions favor, but it inevitably places an emphasis on the quantitative rather than the qualitative aspects of fair use.

Another difference in the analysis has to do with whether uses of course reserves can be “transformative.” With respect to chapters from scholarly books, Judge Evans finds that copying excerpts into course reserves is not transformative. She gives no reason for this finding, simply repeating without analysis the publishers’ claim that the use is “nontransformative” because the excerpts are “mirror images of parts of books.” The implied reasoning, here, is very strange, as every transformative use involves “mirror images” – copies! – of copyrighted work. Internet search engines copy “mirror images” of websites and display “mirror images” of parts of websites in order to facilitate search, and yet these uses have been found transformative. The essential question is the context for the copying – how the “mirror image” is being used. Judge Evans doesn’t seem to have considered, much less answered, the key question: is educational use a transformative activity? Even though she awarded the first fair use factor to GSU on other grounds, Judge Evans got it wrong by giving such short shrift to the transformativeness analysis.

Does Judge Evans’ decision mean that use of course reserves is not transformative?

No, it means that the library community as a whole–comprised of people who serve the scholarly and learning communities that need this work–has been thinking about this in a very different way than Judge Evans. Her ruling doesn’t change the fact that librarians across the nation and across a range of institutions have developed a transformative reasoning applied to this activity, and because she says very little about why she does not share their understanding, she gives the community little reason to change its view.

The library community feels strongly that many uses of course reserves are transformative. As the Description of Principle One points out, using works in an educational context that were originally conceived and marketed to a different audience presents a transformative argument of the kind that has been endorsed repeatedly by federal courts. Instructors add value and create new insights from the raw material they share with their students, precisely the kind of social benefit that fair use is meant to enable and encourage.

This seeming inconsistency may be due to the library community considering uses of all media, including popular film or music, poetry, and the like, in its deliberations; the transformative argument may be more obvious for these works, for which an educational audience is marginal at best, than for scholarly books. However, such arguments could well apply to scholarly books as well, depending on the circumstances.

Librarians can continue to apply the fair use reasoning that comports with their understandings of both the law and library community values in order to meet the needs of their patrons. They might consider how their use matches with Judge Evans’ recommendations when it comes to excerpts from scholarly books, but they should also consider whether their own values and the educational rationale of the instructor make a compelling case for fair use that exceeds the boundaries Judge Evans describes.

Does the decision differ much from the Code in practical terms? Could the Code be applied to reach essentially the same outcome in this case?

While there are very real differences between Judge Evans’ theory of fair use and the theory favored by libraries, the practical outcomes may not actually be that different in the situations at issue in this case. There is some very significant overlap between Judge Evans’ decision and Principle One.

  • Like the Code, the GSU decision emphasizes the legitimacy and centrality of the non-profit educational mission, and distinguishes libraries from for-profit coursepack printers.
    Judge Evans also rejects the idea that fair use somehow ‘expires’ after a single semester, saying it is legitimate to post the same excerpts from semester to semester under the same fair use rationale.
  • Judge Evans agrees with the library community that limiting access to enrolled students in the relevant course is an essential part of the fair use case for course reserves.
    Judge Evans recognizes that use of an entire chapter may be what is reasonably necessary for a legitimate educational purpose, and so refuses to set her third factor ceiling any lower than one chapter.
  • The court argues that factor four will not favor libraries if the publisher relies on licensing digital excerpts to educational users as a significant part of the value of the copyright, which is very similar to the Code’s advice (in the first Limitation to Principle One) that users exercise caution in posting excerpts from works that are designed specifically for use in the relevant course. Indeed, it could be said that Judge Evans’ framework is more liberal than the Code in that it allows posting up to one chapter of any work, even a textbook, whereas the Code counsels generally against using more than “a brief excerpt” of works designed for classroom use. (Alternatively, Judge Evans’ insistence that excerpts from scholarly books be “decidedly small” could be seen as analogous to the Code’s use of “brief excerpt” for putatively non-transformative uses. In that case, the opinion is entirely consistent with the Code, though we could argue about which uses qualify as transformative.)
  • Finally, although Judge Evans does include some bright lines in the context of individual fair use factors, the fact that no single factor or threshold trumps all the others is consistent with the Code’s rejection of outdated “guidelines” that give dispositive weight to numerical limitations.
    In sum, although there is room for multiple interpretations and applications of Principle One, it is certainly feasible that a library applying Principle One to scholarly books would arrive at roughly the same outcomes on a case-by-case basis as Judge Evans did, though for different reasons. Of course, the Judge’s concern about the harm to licensing markets might have been lessened if she had taken the transformativeness argument seriously.

Did Judge Evans know about the Code? Did she say anything about it directly?

The Code was not published until after the trial was over and Judge Evans was already well into her deliberations on this case. She did take a dismissive attitude toward evidence of current community practice around fair use, saying that in the absence of a judicial determination libraries are just “guessing” at what fair use allows. It seems that Judge Evans did not follow the general trend of inquiring into community practice, but it may also be that no one presented her with a compelling argument for why she should. Perhaps if she knew that academic and research librarians had worked carefully together through a 2-year process of identifying and solving recurrent fair use problems, she would have given their opinions more weight. In any event, the decision says nothing at all specifically about the Code.